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International Law

Forced Population Transfers, Mass Expulsions, and Migration: The Law and its Claw

Dr. Nafees Ahmad

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Human inception with autochthonic affinities coated in political proclivities harbingered and vouched for exclusivity of ethnicity, race,and religion in every part of the world. But civilizations have been interacting, intermingling andintermixingever since the people have accomplished the art of movements from one place to another by utilizing and developing the transport technologies of all kinds. However, in the contemporary circumstances, humanity is at war per se that pandered to a catena of causes of population movements across the human spectrum. Population transfers, expulsions, and forced migrations that take place in inconsistent conditions and a wide diversity of circumstances at the moment are coordinatedby a convoluted hodge-podge of legal labyrinth comprising the IHRL—International Human Rights Law, IRL— International Refugee Law, IHL—International Humanitarian Law, and IDL—International Development Law.The population transfer is allowed only in rare and restricted circumstances, with the standards of lawful transfer determined by explicit or implicit prohibitions contemplated predominantly in IHRL and IHL.

The Draft Population Transfer Declaration (PTD) defines illegal Population Transfer and the Implantation of Settlers, 1997 annexed to the Final Report of Special Rapporteur Al-Khasawneh, which was acceptedby the UNCHR (UN Commission on Human Rights) and ECOSOC in 1998. The PTDwas drafted by the UNCHR’s Sub-Commission on Prevention of Discrimination and Protection of Minorities, which was renamed as Sub-Commission on the Promotion and Protection of Human Rights in 1999 until its functions and responsibilities were assumed in 2006 by the United Nations Human Rights Council (UNHRC). The Article 3 of the PTD defines “unlawful population transfer” as “a policy or practice having the goal or result of transferring the people into or out of a territory either within or across an international boundary or within into or out of an occupied territorywithout the informed and free consent of such transferred population and any obtaining population.”The focus of this entry is, first, in those circumstances in which expulsions and transfers may be lawful; and, second, upon the preconditions, limitations, and other requirements, including most notably the right to compensation which needs to be satisfied to render such transfers lawful. However, the forced population transfers have been ruminated upon separately.

The Genesis of the Legal Norms

History is replete with instances of population transfer and its devastating effects on communities and individuals. There is no shortage of examples: population transfer and slavery; dispossession of indigenous peoples; population transfers as a result of treaties. Forthree centuries, before the slave trade was legally prohibited in Britain in 1807,  and afterwards, at the international level,by the General Act of the Brussels Conference Relating to the African Slave Trade-1890, the Slavery Convention-1926 and the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practice Similar to Slavery-1956, was banned. The transatlantic slave traders enslaved and transported at least 12 million Africans to the Americas. The American Colonization Society, established in 1816, organized the transportation of free black Americans and manumittedand emancipated the slaves to Liberia, a policy which generated significant debate and which had been disputedat the time by many African-Americans. While deportation for slave labourwas rightly condemned as a war crime at Nuremberg, the failure of the Tokyo Tribunal to condemn the transfer of “Comfort Women” into sexual slavery during World War-II has been justly castigated.It has been highlighted in the Gender-Based Crimes judgment handed down by the non-governmental organization calledWomen’s International War Crimes Tribunal that conducted the Trial of Japan’s Military establishment’s Sexual Slavery in 2001.

Indigenous people have been subject to widespread population transfers. Colonialism and Colonization led to the large-scale dispossession of indigenous peoples. Beginning with the Indian Removal Act, 1830[28 May 1830] whereunder an Exchange of Lands instead of the Indians Residing in any of the States, or Territories, and for Their Removal from the West of the Mississippi Riverwas provided.Consequently, series of statutes in the United States of America provided for the forcible removal of an estimated 100,000 Native Americans to reservations to make way for the settlers. Segregationist practices and policies in South Africa saw the creation of reserves for Africans and eventually led a system of apartheid based on Racial and Religious Discrimination popularly also known as South African Bantustan Policy to the establishment of the much-criticized homelands. Article-II (d) of the International Convention on the Suppression and Punishment of the Crime of Apartheid, 1973 prohibits, among other things, the creation of separate reserves on racial grounds. However, indigenous people continue to suffer population transfers often as a result of development projects reported by the Royal Commission on Aboriginal People, 1996 of administrative and development relocations of Canadian aboriginal people.

The population transfers have also been provided for by treaty. Greece and Bulgaria agreed to the consensual exchange of minorities in the 1919 Convention Respecting Reciprocal Emigration. The Convention relating to the Exchange of Greek and Turkish Populations-1923whereunder compulsory transfer of 1.5 million ethnic Greek population of Turkish nationality, and 400,000 ethnic Turks of Greek citizenshipwas provided. The treaty provided for a commission of representatives from Greece, Turkey, and the Council of the League of Nations to supervise transfers and the payment of compensation. However, controversy ascended over its scope ratione personae.  When the treaty’s compensation provisions proved unworkable, they were replaced by lump sum agreements.

The Legality of Forced Population Transfers

The legality of forced or compulsory population transfer was robustly contested at the time both at and beyond the conference table. Extensive population transfers took place before, during, and after World War-II, including those resulting from some bilateral population transfer treaties between the Reich and, for example, Italy, the Baltics, and the Soviet Union. Typically these deals included an “option clause” although it has been disputedwhether, in practice, consent was freely given. It is more accurate to categorize these events as a forced population transfer, as millions of individuals were in fact forcibly expelled (whether from the German-occupied territory, or within the Soviet Union) in blatant and unprecedented violations of international law.

At the conclusion of World War II, compulsory population transfers continued on a massive scale in Europe by inter-State agreement. A few weeks after the Allies adopted the UN Charter, the Soviet Union, the United Kingdom, and the US agreed at the Potsdam Conference-1945 that transfer to Germany of the German population in Czechoslovakia, Hungary, and Poland “will have to be undertaken” as per the Article XIII of the Potsdam Protocol and should “be effected in an orderly and humane manner” although in practice it was neither. The legality of the Potsdam Protocol under international law, as well as the subsequent forced population transfer, was stronglycontested at that time.Particularly, Article 7 of the PTD provides that international agreement can not legalize population transfers which violate fundamental human rights norms. Post-World War-II population transfers were not limited to German minorities: the agreement between Hungary and Czechoslovakia to exchange 200,000 Magyars and 200,000 Slovaks in February 1946 represents just one of some bilateral population exchange agreements of the impugned period.

The Potsdam Protocol has been regardedas an attempt to validate expulsions already in progress, as much as an endeavour to regulate future population transfers. Similarly, the Agreement between India and Pakistan on Minorities designated as “New Delhi Accord”-1950 served more like a “formal recognition of a fait accompli of the population transfer of about ten million population of Hindus and Muslims between India and Pakistanin the wake of the partition of the Indian Sub-continent in 1947. As the Preliminary Report observes, while such transfers were in some degree consensual and aimed at avoiding inter-ethnic conflict, they involved “a tragic human rights trade-off.” During the armed conflict in the former Yugoslavia, numerous resolutions by the UN Security Council (UNSC), including UNSC Resolution 826 (1993) and 859 (1993) called for the reversal of the effects of ethnic cleansing in Yugoslavia in its post-dissolution stage. However, some commentators criticized the General Framework Agreement for Peace in Bosnia, and Herzegovina popularly designated as Dayton Peace Agreement that ended the war in 1995, for affirming territorial changes brought about by ethnic cleansing.

With the entrenchment of IHRL in the second half of the 20th century, it is increasingly accepted that population transfers violate a series of human rights guarantees as identified in the judgments of Cyprus v. Turkey delivered by the European Court of Human Rights (ECtHR) on May 10, 2001. The Cyprus v. Turkeywas decided by the European Commission of Human Rights on October 04, 1992.The Sub-Commission constituted forthe Prevention of Discrimination and Protection of Minorities,and its Special Rapporteur studied the population transfer from the early 1990s, and his Final Report was published in 1997. The Final Report had recommended the adoption of a Comprehensive International Instrument on Population Transfer and appended the Model Declaration on Population Transfer to apply in all situations, and to all persons, groups, and authorities under Articles 1 and 2wherein a number of its terms reflect the current customary international law.Moreover, the jurisprudence developed by the International Criminal Tribunal for the Former Yugoslavia (ICTY) has also significantly influenced the development of the law on forced population transfer.

The Current Legal Phantasmagoria

If the international legal policy has changed over time to restrict the legality of population transfer, history offers valuable lessons. Firstly, it regrettably demonstrates the recurrent use of population transfers in State and nation-building. Secondly, it shows the international community’s all-too-frequent de facto acceptance of population transfer or its effects in pursuit of its perception of how the interests of peace are best served. Thirdly, as instances of population transfer demonstrate, the enforcement of law poses considerable challenges. But it is also worth emphasizing the existence of significant new problems, including the question of climatic displacement identified in the UNHCR “Forced Displacement in the Context of Climate Change: Challenges for States under International Law.” Therefore, the Forced population transfers are, as the Preliminary Report concluded, prima facie unlawful because they violate core norms of IHRL and IHL. A vast pool of human rights instruments prohibit the mass expulsion of nationals and aliens, and the rights of Internally Displaced Persons (IDPs) not to be arbitrarily displaced is recognized in the authoritative soft law developed by the UN Secretary-General’s Representative on Internal Displacement adopted as UN ECOSOC “Guiding Principles on Internal Displacement” in 1998.

As Article 3 of the PTD makes clear, the concept of population transfer encompasses settler infusion such as the implantation of Moroccan, Indonesian, and Chinese settlers into Western Sahara, East Timor, and Tibet respectively. By altering the demographic composition of host populations, settler infusions can jeopardize the exercise of the right to self-determination. In practice settler infusion and expulsion are often related, as is illustrated by the illegal expulsion under the government of late Saddam Hussein of ethnic minorities from oil-rich regions of northern Iraq, accompanied by the resettlement of Arabs in furtherance of a policy of “Arabization.” However, in certain assiduouslydefined circumstances, population transfers may be lawful. Article 3 of the PTD makes the legality of population transfer dependent on the informed consent of host and transferred populations. In areview of Special Rapporteur Al-Khasawneh’s “Progress Report” under Para 25 along with international jurisprudence and international conventions, concludes that this principle of consent has reached the status of a general principle of international law. The transfer is non-consensual where it is forcible, coerced, or induced.  As obtaining informed consent often presents considerable difficulty, the Progress Report rightly emphasizes the need for monitoring mechanisms to ensure officialapproval.

International Human Rights Law

Additionally, population transfers may be lawful in certain situations such as national emergency, public disorder, or environmental crises, but in each case only subject to the fulfillment of conditions for lawful derogation from non-derogable human rights in thestate of emergency. For example, while it follows from the protection of freedom of movement under Article 12 of International Covenant on Civil and Political Rights-1966 (ICCPR), Article 13 of Universal Declaration of Human Rights (1948) (UDHR), and Article 5 of International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) that population transfer within a State or across an international border is prohibited, derogations from the right to freedom of movement, to the choice of residence, to leave, and to return are permitted. Such derogations are tightly circumscribed and limited to the public interest and compensation must be awarded as expounded by the “Inter-American Commission on Human Rights Report of November 29, 1983,ona section of the Nicaraguan population of Miskito origin and their Human Rights conditions. Similarly, Article 4 of the PTD permits displacement only where either the safety of the transferred population or imperative military reasons demand. In such circumstances, displaced persons should be allowed to return immediately when the conditions rendering their displacement imperatively cease. Transfers must not interfere with minority and indigenous rights of the host population.  Where the purpose or means of population transfer violate norms of jus cogens (peremptorynorms of international law), it is, indeed, prohibited.

Forced Population Transfer & Indigenous Peoples

The Preliminary Report states that population transfer is the primary cause of land loss of the indigenous people as it constitutes a principal factor in the process of ethnocide as discussed at Para 101 of the Report. However, while Article16 (1) of International Labour Organization (ILO) Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989) states that indigenous peoples should not be removed from the lands they inhabit. This fundamental principle is subject to the exception and prerequisites detailed in Article16 (2) of ILO Convention No 169 as follows:Where the relocation of these peoples is considered to be necessary as an exceptional measure, therefore, such kind of relocation shall take place only with their free and informed consent. Where their consent cannot be obtained or ascertained, such relocation shall take place just following appropriate procedures or due process established by the national laws and regulationsincluding public inquiries where necessary, which provide the opportunity for valid representation of the peoples concerned.

If relocation occurs, indigenous peoples are entitled to be compensated for loss or injury as provided under Article 16 (5) of ILO Convention No 169 and they enjoy a right to return “wherever possible” once the reasons for relocation cease to apply [(Art. 16 (3) ILO Convention No 169)]. Where areturn is impossible, indigenous peoples should be provided with comparable alternative lands or, should they prefer, compensation (Art. 16 (4) ILO Convention No 169). These provisions concerning consent and compensation represent international custom (Progress Report Para. 27). Many indigenous groups have disassociated themselves from the convention, in part because of the overly permissive tenor of Article 16 of ILO Convention No 169 favours the State. The convention has also been criticized for failing to acknowledge the importance of the relationship of indigenous peoples to a particular place (Preliminary Report Para. 257). The non-binding Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly (UNGA) on 13 September 2007, addresses some of these criticisms. Having noted in its Preamble the concern for the historical injustices indigenous people have suffered, among other things through colonization and the dispossession of lands, Article 10 of the Declaration on the Rights of Indigenous Peoples subjects relocation of indigenous people to their “free, prior and informed consent” in unqualified terms after “agreement on just and fair compensation” with an option to return where possible.“The Declaration on the Indigenous Peoples’ Rights” further provides that indigenous peoples have a right to redress and reparation for lands that have been taken or used in the past without their consent under Article 28. The Declarationobliges States to provide effective mechanisms to prevent and contain redress for forced population transfer under Article 8 (c) of the Declaration on the Rights of Indigenous Peoples regarding Environment and Indigenous Peoples also.

Population Transfer and Development

Beyond the context of indigenous people’s rights, the legality of population transfers carried out to make way for development projects is not currently subject to specific regulation by international treaties on the progressive development of International Law. However, referring to sources such as the principle of self-determination enshrined in Article 1 of the ICCPR-1966.UN resolutions on the development and human rights and development and the environment, the Preliminary Report authoritatively argues that customary international law already governs these incidences of population transfer (at Paras 300–311). The Final Report concludes that the legality of such population transfers depends on them being non-discriminatory, in the public interest, that they do not deprive people of their means of subsistence, and are subject to the consent of the people to be transferred. Their consent must be procured after dialogue and negotiation with the population’s elected representatives on “terms of equality, fairness,and transparency” (Article 68, Final Report). The transferred people should be provided with monetary compensation as well as equivalent land, housing, occupation, and employment.

Since 1980 the World Bank has responded to international pressure by developing a policy on involuntary resettlement documented by the World Bank Group. Operational Directive 4.30 (1990) was replaced in 2001 by Operational Policy 4.12 on-Involuntary Resettlement, as revised in February 2011. Reports have documented great enforcement difficulties, however, and resettlement has faced popular resistance as recorded on pages 211–212. The transnational coalition against the Narmada river dams contributed to the World Bank withdrawing its funding in 1993. A cross-border campaign, together with a negative World Bank Inspection Panel Report, led the Bank to withdraw its support for the China Western Poverty Reduction Project, which would have involved the settler infusion of around 58,000 Chinese into Tibet.

Population Transfer in Armed Conflict

Apart from voluntary transfers during international armed conflicts, under Article 49 of the 4thGeneva Convention Relating to the Protection of Civilian Persons in Time of War-1949 provides that during hostilities, temporary evacuation is permissible only where it is necessary for the “security of the population” or where “imperative military reasons do demand.”  Similar arguments are also advanced in situations of International Armed Conflicts and Military Necessity etc. Even then, temporary evacuation is subject to some conditions. Firstly, displacement is not permitted outside the territorial boundaries of the occupied State unless impossible to avoid “for material reasons” (Article 49, Geneva Convention-IV). Secondly, on the cessation of hostilities evacuees should be returned home. Thirdly, occupying powers are obliged to provide “to the greatest practicable extent” proper accommodation for those evacuated, and evacuations should be carried out “in satisfactory conditions of hygiene, health, safety,and nutrition.” Fourthly, family members should not be separated, and finally, protecting powers should be informed of all kinds of population transfers.

The transfer of acivilian population by an occupying power of its civilian population into occupied territory is also prohibited. However, there arefew disputes as to whether it constitutes a grave breach of the customary international law?In 2004, the ICJ held in the case of the Construction of a Wall in the Occupied Territory of Palestine and its Legal Consequences [2004] ICJ Rep. 136 Para 134 popularly called “Israeli Wall Advisory Opinion Case” that the construction of the wall and “its associated régime” violated the rights of the people of the Occupied Territory to freedom of movement, work, an adequate standard of living, education, and healthas well as the Jus Cogens right of self-determination.

In non-international armed conflicts, displacement is permitted only where it is required for the security of the transferees or imperative military necessity. In this case, Article 17 of the Additional Protocol-II, 1977 to Geneva Conventions-1949 requires that “all possible measures” must be taken to ensure the transferred population is “received under satisfactory conditions of shelter, safety, health, hygiene,and nutrition.” Otherwise, population transfers “for reasons relatingto the conflict” are forbidden. The Final Report calls for the parameters of the concept of “military necessity” to be further developed to prevent abuse advocated at Para. 39. However, the belligerents have “broad powers” to expel enemy nationals during an armed conflict as documented and titled under Civilians Claims: Eritrea’s Claims 15, 16, 23, 27–32 Para. 81 and further Paras 82 and 99; Civilians Claims: Ethiopia’s Claim 5 Para. 121. These powers are not, however, unlimited. Belligerents must ensure the application of humanitarian law,and humanitarian standards, including those contained in Articles 35 and 36 Geneva Convention IV enshrined in the Civilians Claims: Ethiopia’s Claim 5 Para. 122) but “Indiscriminate rounds-ups and expulsions based on ethnicity” are unlawful.

Remedies and Enforcement

Unlawful population transfer gives rise to State responsibility and individual criminal responsibility under Article 9 of the PTD where population transfers occur within the territorial boundaries of a single State, it may be difficult if not impossible to identify a State that is injured and, therefore, entitled to bring a claim under the traditional principles of State responsibility. However, third States may incur duties of non-recognition and non-assistance (the Construction of a Wall and itsLegal Consequences in the Occupied Palestinian Territory Case [Advisory Opinion, Para. 136]. From Britain’s naval interdiction of slave traders in the first part of the 19thcentury through to the use of force by the North Atlantic Treaty Organization (NATO) against Yugoslavia wherein the right of humanitarian intervention to prevent population transfer has been contested in the case popularly known as Legality of the Use of Force Case (Yugoslavia v Spain, Provisional Measures Order).

The right to return is central to restitution in inter-regnum under Article 8 of the PTD. Evidence for its customary international law status can be drawn from some international instruments such as provisions in human rights instruments, e.g. Article 13 (2) of the UDHR, Article 5 of the ICERD, Article 12 (4) of the ICCPR, Article 22 (5) of the American Convention on Human Rights, 1969, and Article 12 (2) of the African Charter on Human and Peoples’ Rights, 1981as well as UN Resolutions, Peace Agreements and Soft Law relating to IDPs (UN Guiding Principles on Internal Displacement, 1998). The Final Report considers that the State of origin is obliged to facilitate return (at Para. 60). The Dayton Peace Agreement made the return of refugees and displaced persons an “important objective of the settlement and resolution of the conflict in Bosnia and Herzegovina”as enunciated in Annexure 7, Article 1 (1) of Dayton Peace Agreement. It provides for refugees and displaced people to return to their “homelands of origin,” leaving the choice of destination to the returnees, and for the return of their property and compensation.

The practice of return has proved problematic with multi-dimensional ramifications as the right has been insufficiently enforced is illustrated by repeated failures to implement UNGA Resolution 194 (III) (1948) concerning the return of Palestinian refugees, and to secure the return of refugees in Cyprus. Likewise, security concerns and delay in resolving property claims have proved formidable obstacles to implementing return provisions in the Dayton Peace Agreement. Moreover, the scope of the right to return, particularly the effect of the passage of time, is unclear. As the Final Report states, “peace is ultimately an act of compromise” as noted at Para 63.Thus, the ECtHR has observed that:

“It cannot be within this Court’s purview in interpreting and applying the provisions of the Convention to execute an unconditional obligation on a Government to get on on the forcible ejection and rehousing of possibly large numbers of people (men, women, and children) even with the aim of justifying the rights of victims of violations of the Convention” (Demopoulos v. Turkey, Para. 116).

Of significant legal contestation is the effect of the Oslo Accords, which do not refer to UNGA Resolution 194 (III) on the right to return of Palestinian refugees. In 2003, the Danish Supreme Court refused to grant a right of return to the Thule tribe who were relocated in 1953 to facilitate the establishment of a US airbase, although it did order the payment of compensation (Hingitaq 53 v Prime Minister’s Office, Danish Supreme Court [28 November 2003] (2004) 98 AJIL 572).Similarly, on a number of occasions the whilst English courts have ruled that Britain’s removal of the Chagos Islanders between 1965 and 1973 to make way for an American Military Base, and the Orders in Council (2004) preventing their return, are illegal (R. [Bancoult] v. Secretary of State for Foreign and Commonwealth Affairs [No 2] [2007] EWCA Civ 498). The British government has opposed long-term resettlement, and the House of Lords has subsequently, on appeal, upheld the legality of prerogative orders preventing the unrestricted return of the Chagos Islanders (R [Bancoult] v. Secretary of State, Foreign and Commonwealth Affairs [No 2] [2008] UKHL 61).

Entitlement to compensation for unlawful population transfer forms part of duty on the part of the responsible State to compensate victims of human rights abuses, which is increasingly gaining recognition in modern international law (Report of the International Commission of Inquiry on Darfur Paras 590–603). Such a right is also recognized in specific international instruments, sometimes as a prerequisite to the lawfulness of transfer, but also for loss and injury arising from the transfer (Article 16, ILO Convention No 169; Article 8 of the PTD; Principle 29of UN Guiding Principles, 1998). The Progress Report suggests that in the case of lawful transfer damage should be compensated “as a matter of equity” as per Para137 that analyses the Equity in International Law. There is also judicial recognition of a victim’s right to receive compensation for loss arising out of population transfer as stipulated in the Loizidou Case. This right may require general measures to be taken at the national level according to the Broniowski Case, Xenides-Arestis v. Turkey [ECtHR]). Further, in Demopoulos v. Turkey, the ECtHR dismissed the claims of Greek Cypriots based on the EuropeanConvention on Human Rights(ECHR) under its Article 8 and Article 1 of the Additional Protocol to the ECHR on grounds of non-exhaustion of domestic remedies, holding that the Turkish Republic of Northern Cyprus Immovable Property Commission provided “an accessible and practical framework of redressal in regarding complaints about interference with the property owned by Greek Cypriots adumbrated at Para 127. Amongst the recommendations of the Final Report at Para 74 is the establishment of an International Trust Fund (ITF) for rehabilitation of population transfer survivors. The issue of reparations for the slave trade remains contested which has been shown by discussions taking place during the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban in 2001.

Conclusion

It may aptly be understood that presently many regions in the world mainly Balkans and the Caucasus in Europe, South Asia (Statelessness) and South East Asia  (displaced persons—Rohingya refugees) have been devastated by ethnic and racial conflicts. The global conflicts in Gulf region, Syria, Yemen, Congo, Rwanda, South Sudan, Lebanon, etc. have triggered massive human displacements, refugee migration and asylum seekers that have been forcing people to flee within their homelands or abroad owing to fear of persecution.The absence of a single global instrument on population transfer leads to overlap, inaccessibility, and disparity in the level of protection available to victims of different forms of population transfer. Some of these problems would be overcome if States were to adopt the Population Transfer Declaration. Given the deleterious consequences of population transfer and the difficulties of enforcing the law on consent, return, and compensation, it might be questioned whether legal provisions still weigh too heavily in favor of States and entities seeking to transfer.

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

Turkish denial of Armenian genocide and application of international law for justice

Punsara Amarasinghe

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Authors: Punsara Amarasinghe and Anastasia Glazova*

Exactly one hundred and four years ago world witnessed the first systematic genocide when the international law had adopted no specific legal remedies to prevent such atrocities or decades before Raphael Lemkin coined the term “Genocide” in 1944. The calamity that befell Armenian people lived in Ottoman Empire have been widely discussed as one of the macabre events recorded in human history as it took more hundred thousands of Armenian lives, yet up to this day Turkish government has denied the events took place in Turkey against Armenians. The facts which paved the path to slaughter Armenians were filled with the rise and of nationalism in Ottoman Turkey and also it fair to assume Armenian people were caught between the two belligerent powers of Russia and Turkey and later took the pretext to considering some Armenians were loyal to Russia as a good strategy to carry out their massacre. The Armenian genocide was executed under the chief motive of eliminating the whole Armenian population from Ottoman territory.

The atrocities against Armenians were given legitimacy as Turkish government promulgated temporary law of deportation and temporary law of expropriation and confiscation, which granted a legitimate way to get rid of Armenian population and also to eventually to acquire their properties as well. After the defeat of Ottoman empire and central European powers in First World War the actions taken by allies in 1919 Paris peace conference against the perpetrators of Armenian genocide. The decision of conducting a trial for the perpetrators was culminated in Treaty of Severes as its article 230 states that the Ottoman Empire “hand over to the Allied Powers the persons whose surrender may be required by the latter as being responsible for the massacres committed during the continuance of the state of war on territory which formed part of the Ottoman Empire on August 1, 1914.” However the allied attempt to establish a proper trial on Armenian genocide was faded into oblivion as the prosecutors found no solid evidence to reprimand Ottoman officers involved in Armenian genocide and eventually most of them were walked free without being charged.

Most interesting question pertinent to Armenian genocide remaining today is the ambiguity of assessing the planned intention of Ottoman government to exterminate Armenian population systematically. According to Article 2 of Genocide Convention adopted in 1948, the element of genocide can be proven when such acts were committed against national, ethnical, racial or religious group” with “the intent to destroy [it] in whole or in part”. The common rhetorical quibble which has been often used to cover the Turkish responsibility over Armenian genocide is that the genocide convention was not existing at that time when those heinous crimes were occurred. However the prohibition of international law is in inherent part of peremptory norms ( JusCogens ) in international law  which binds all the states to eliminate such crimes and bring the perpetrators before justice. Regarding the state responsibility of Turkey as the liable party who took the initiatives of obliterating Armenian population from its territory, it is interesting to observe that Ottoman rule was ceased to exist after their defeat of First World War and the emergence of Kemal Ataturk’s secular Turkey denied accepting the responsibilities for such acts occurred in the past and pay compensation for the victim unlike how Germany felt humiliated on their Nazi past after Second World War and adopted a policy of providing compensation for the descendants. Instead of moving to embrace the guiltiness of the past, the republic of Turkey seemed to have negated the factual reality from its masses through various methods.

As an example when the whole Armenian diaspora around the world commemorated  103rd anniversary last year, Turkish president declared bringing  genocide charges against Turkey is akin to “blackmailing” his country. Moreover the creating a public discourse about their notorious imperial past of Ottoman Empire has been completely trampled by legal apparatus of Turkey as Article 301 of current penal code of Turkey has penalized criticizing Turkishness as a criminal offence. Many journalists and activists including Turkish bestselling novelist Orhan Pamuk were reprimanded in Turkey under this outrageous section of Turkish penal code, because they had audacity to condemn the atrocities took place in the past against Armenians lived in Ottoman territory.

Tracing the state responsibility of modern Turkey for the acts occurred in the past from international law perspective drives modern day scholars for a labyrinth to seek the connectivity of the past and state responsibility. Legal historian Vahagn Avedian has suggested in his article titled State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide” the responsibility lies in modern Turkey as it is the continuation of Ottoman Empire and his contention is based on the fact that only some minor changes happened when the republic replaced the empire. He shows many of those accused of war crimes and illegal confiscations were elevated to high positions in the republic and almost none was convicted for the committed internationally wrongful acts.

The lack of solid evidence and constant denial of Turkish government in both past and present has always hindered the threshold of creating genocide charges for the brutal acts committed against Armenian population, nevertheless the evidence left by some witnesses show the exact intent of Ottoman regime to eradicate Armenian community from their empire. As an example the memories written by American consulate in Harput Mr. Leslie Davis provide solid evidence of the horrendous massacre of Armenian civilians in the province of Harput. When it comes to tracing the intentional element of carrying out such heinous acts it is clear that orders stemmed from the authorities of Ottoman Empire to preserve its purity and the background before the events took place demonstrate the fact that Ottomans possessed the clear intention getting rid of its Armenian community. Since the individual responsibility lies in state ambiguity to prove today as all the responsible persons for Armenian genocide are dead and gone, the concern of state responsibility can be an ideal tool to use against Turkey from international legal perspective. In the context of bringing Turkey before justice the role of European Court of Human Rights can be taken as an ideal example as both Turkey and present day Armenia are members of the court. However due to the total absence of cases for the Armenian Genocide, the ECHR could draw arguments from other supranational courts where it is encouraged to foment dialogue between the courts’ judges. Indeed, even functionally specialized tribunals remain part of an integrated and interconnected system and have recourse to the same basic sources of international law.

All in all the attempt of proving Turkey’s responsibility international law by using available remedies through ICJ, ECHR of International Criminal Court seem to be twilight as I pointed above due to lack of clear evidence and other anomalies, yet the justice for the victims only can be rendered by going for a mutual reconciliation between modern state of Armenia and Republic of Turkey. The current camaraderie between France and German has shown us the one bitter enemies can become closer friends through good actions which eventually heal the memories of past and as it has been more than 100 years since this heinous crimes took place against Armenian people, Turkey should at least declare a note of apology for the victims and I believe such an act coming from the state whish was responsible for the actions would make more sense than grappling with vague circumstances under international law to prove justice. 

*Anastasia Glazova is a PhD researcher in Faculty of Law in Higher School of Economics in Moscow. Her research areas include international law, international maritime law, law of the sea and international human rights law. She can be reached at angla.1892[at]mail.ru

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International Law

The clash of human rights ideas between universalism and relativism

Nargiz Hajiyeva

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All human beings are born free and equal in dignity and rights. They should act towards one another in a spirit of brotherhood”. Article 1 of the Universal Declaration of Human Rights, 1948.

Human rights from the prism of universalism

After the outbreak of the Second World War, maintaining and in particular, providing a universal set of rules and values of human rights were put forward as one of the basic duties. Universalist approach searches for what is methodical and systematic, tries to enforce the rules, laws, and norms on all of its members so that things can run more resourcefully. In order to promote democracy in terms of human rights should be a pivotal priority of each state. Certainly, the development of a state adequately depends on preserving, and especially the implementation of human rights in civil society. In our current world, human rights are based on two predominant approaches in accordance with regions-East and West, North and South. One of them is universalism, another is cultural relativism. The cutting edge universalism theory of human rights can be founded not only on common law, equity, response to dignity, injustice, and fairness of appreciation, but also capacities of a human being, moral agency, and self-ownership, among other peopleUniversal sets of standards, rules, and values are based on Western countries prospects. The history of universalism can be traced back to the Universal Declaration of Human Rights on 10 December 1948, as a pivotal guide to mankind. As a result, The Declaration expressed a novel denotation to the word “universalism.”

The fundamental values and principles highlighting the concept of human rights are of a universal character. Thus, these values and principles referred to the concept of individual liberty and freedoms, the belief in democracy and political rights, the acknowledgment of social and economic rights. “To a large extent, universality is one of the indispensable descriptions of human rights. From this perspective, human rights are civil rights that apply to all humankind and are therefore referred to universal values and rules. All human beings are the possessor of these civil rights, independent from what they actually do, where they come from, where they reside and from their national citizenship, their community, etc. “The universality of human rights is rooted in and also manipulated by the other characteristics of human rights: human rights are categorical (every human being has these rights, they cannot be denied to anyone), democratic (also called egalitarian-every human being has the same rights), individual (human rights apply to every human being as individual and protect the latter from violations by a collective recognizing at the same time the important role of a collective for the individual, they have their own rights to provide themselves sufficiently in social community, such as freedom of living, speech and etc), fundamental (human rights protect basic and essential elements of human continuation) and indivisible (the whole catalog of human rights must be respected, they are complimentary)”.[1]

It would be necessary to emphasize that promoting democracy, providing human rights, individual liberty, national self-determination, and the other values were noted on Woodrow Wilson’s fourteen-point program. The main crux of universalism is the implementation of universal sets of norms, and values along with not only Western countries, but also Eastern, Asian and The Middle Eastern countries, where cultural relativism (mainly moral relativism) dominates and contains its moral and ethical values over people of these countries. Universal human rights are based on Western ideology. It has been argued that universalism on human rights merely referred to Western Imperialism. It put forward some challenges in accordance with the main priorities and prospects of universal human rights. Unquestionably, we apparently realize that countries who reject the universal sets of standards as a policy of Western countries, form some basic values and ethical values based on cultural relativism. Universalism and cultural relativism cannot coincide with each other in terms of diverse moral and universal values.

In our industrialized world, the universal sets of values cannot be wholly implemented to all countries, because of the fact that strong dominance of primordial cultural and ethical values and standards which bolster their places among people within civil society, at the same time reject the universalism of human rights. On the other hand, cultural relativism cannot be accepted as universal moral values for countries. According to providing human rights, universalism is a pivotal approach that has more opportunities than cultural relativism. But, in more cases, we try to percept the today’s realities of the world. In general, as we understand that providing universal human rights have to base on the basic principles and rules within international law, but cultural relativism cannot refer to the rules and norms of international law, because of having predominant cultural and traditional values and norms within its own system. Thus, a related challenge is that the inspirations of human rights do not aid to solve the most disputable issues of non-Western societies. The extreme of which is that the idea of human rights is in many cases, as opposed to the ideas and values of non-Western countries.

In the case of the universality of human rights, there are some challengeable situations along with the implementation and perception of human rights. Since the publication of Pollis and Schwab’s Human Rights: Cultural and Ideological Perspectives in 1979, human rights universalists and cultural relativists have collided in regard to legality and applicability of human rights outside the West within civil society. In their confrontational lead essay, “Human Rights: as Western Construct with Limited Applicability,” the authors argued that “the Western political philosophy upon which the United Nations Charter and the Universal Declaration of Human Rights are based provides only one specific elucidation of human rights, and that this Western notion may not be successfully applied to non-Western areas” due to ideological and cultural differences.[2]

Apart from these, it can be comprehended that Universality of human rights refers to Western cultures, in particular, traditional and moral characters, which can not be implemented to non-Western countries because of having their own cultural and ethical rules and norms. The implementation of universal human rights from the Western perspective to relativist non-Western countries cannot achieve any kind of success in terms of providing human rights sufficiently, because of the fact, universal human rights merely concern on the Western-cultural sets of norms. Thus, in the case of non-Western countries, cultural relativism and universalism can collide with each other in for a range of reasons, for instance, considering moral and ethical standards, attitudes toward human rights, implementation of these rights and etc.

The approach of cultural relativism

Relativism is characterized as a set of views about the connection between morals and culture or humanity. Apart from universalism, cultural relativism is based on morals, ethics, and customs of each human society and differs from one another. Thus, what is the crux of cultural relativism within civil society? Cultural relativism is the vision that all beliefs, traditions, and morals are in respect to the person inside of his own social setting. As such, “right” and “wrong” are society particular; what is viewed as good in one society may be viewed as morally wrong in another, and, since no worldwide standards of morals and ethical behaviors exist, nobody has the privilege to judge another society’s traditions. Moreover, we can not judge someone, or person with his or her cultural values, in particular ethics and morals in society.

Cultural relativism is an aphoristic standard created by Franz Boas and advanced by his successors of human sciences in the 1940s. It was blended with moral relativism during the Meetings of the Commission of Human Rights of the United Countries in setting up the Universal Declaration of Human Rights from 1946-1948.  Thusly, the scholastic marvel of cultural relativism grew synchronously with the conception and development of the universal human rights lawful administration. Actually, discussion, cultural relativism within the order of humanities is a heuristic device reflecting the rule that an individual human’s convictions bode well as far as his own particular society, while moral relativism imitates the rule that all societies and all worth frameworks, while unmistakable, are just as substantial.

In 1887, Franz Boas first ascribed this principle as “… civilization is not something complete but is relative, and our thoughts and conceptions are true only so far as our civilization goes”, whereby, he formed an adage of anthropological research.[3]

According to some analysts, cultural relativism sees nothing naturally wrong with any cultural appearance. As a consequence, the primordial Mayan practices of self-mutilation and human sacrifice are neither good nor bad; they are simply cultural distinguishing, analogous to the American custom of shooting fireworks on the Fourth of July. Human sacrifice and fireworks -both are merely diverse products of separate socialization. Cultural relativism engenders in each human society differently.[4] Cultural relativity is an irrefutable fact that ethical rules and social institutions produce astounding cultural and historical variability. Cultural relativism is an authoritative opinion that holds that (at any rate some) such contrasts are absolved from legitimate criticism by outsiders, a precept that is firmly bolstered by ideas of mutual independence and self-determination.

Moral judgments, notwithstanding, would appear to be basically widespread, as proposed by Kant’s definite imperative as well as by the common sense difference in the middle of the principled and self-intrigued activity.  The perception of human rights in the modern world from the prism of both universalism and cultural relativism is entirely complicated. At the same time, they showed their assumptions and ideas with a radical approach. In this case, two extreme positions can be considered in each called radical universalism and radical cultural relativism. Radical cultural relativism holds the opinion that culture is the sole wellspring of the legitimacy of ethical rights and rules. Radical universalism emphasized that culture is unimportant to the legitimacy of moral rights and principles, which are universally lawful and valid.      

Furthermore, the main arms of the cultural relativism are typified as strong and weak cultural relativism. How were they considered under the rules of human society? –  Strong cultural relativism refers to culture as a vital source of the legitimacy of ethical rights, in particular, morality and rules. The standards of Universal human rights, however, serve in conjunction with ensuring on potential excesses of relativism. At its utmost extreme, just short of radical relativism, strong cultural relativism would recognize a few basic rights with virtual universal requests, but allow such a wide range of variation for most rights that two entirely reasonable sets might overlap only somewhat. Weak cultural relativism also cites that culture may be an imperative well of the legitimacy of an ethical right and rules.  Universality is at first assumed, however, the relativity of human instinct, groups, and rights serve as to verify on potential abundances of universalism. In some cases, weak cultural relativism would perceive an extensive arrangement of by all appearances universal human rights, but permit intermittent and entirely constrained neighborhood varieties and special cases. [5]

Hence, the cultural impacts on human civilization are unalienable, regarding the fact in civil societies had been formed by the effects of various types of moral and ethical powers, in particular, primordial traditions belonged to each human being. Thus, in today’s world, the realities of East and West, North and South are irrefutable. Moreover, there can be slight uncertainty that there are important, structurally determined cultural and in many cases, moral distinctions for example, between the basic “personality and natures “of men and particularly, women in modern western and traditional Islamic or Muslim societies. Thus, human nature formed the basic personality of each human being within his or her civil community.    Relativism centers on the thoughts of moral self-sufficiency and public self-determination.   Regarding cultural relativism, it also establishes the internal and external effects of morality.

The main features of internal evaluations were given by your own society, but the external evaluation focus would seem universal judgments that can be affected by western or other foreign societies. Furthermore, moral judgment by their society is normal and universal for its human nature. Because of the fact that he or she belongs to this civil society which is based on its cultural and moral characteristics and for this reason, moral judgments given by his or her own society center on their genesis and historically specific contingent.  

Pre-colonial African village, Native American tribes, and traditional Islamic or Muslim social community focus on the native morality of cultural relativism. Universal human rights are strange to their community, the reason why, they merely concern on their native traditional values, because of the fact that the communal self-determination, in particular, moral self-sufficiency engenders cultural and social variability of human nature within their own community.[6] Long-established traditional cultures of Africans for example, usually were powerfully constitutional, with compulsory major restrictions on civil society. These kinds of central limitations also deprived them of the main universal and identified norms and values of the contemporary world. Thus, it can lead to strong despotism and violence in this community.    According to cultural relativism, it can be essential to mention some Asian, the Middle Eastern and Latin American countries through considering their own conventional values and morality within the system of human rights.

Regarding Pakistan, the main reference in its National Report is contained in the schooling procedures underlined by the government, in which it proclaims that the “new National Educational modules has tried endeavours to incorporate standards, in particular values of human rights, maintaining assorted qualities and distinction  alongside universal human rights that In the case of Pakistan, CEDAW was unequivocally worried about not only pervasive patriarchal positions and attitudes but  deep-seated conventional and cultural stereotypes related to the roles and responsibilities of women and men in the family, in the place of work and in civil society.[7]

In accordance with cultural values and traditions, in Iraq, young ladies are often deprived of education after 12 to 15 years in provincial areas; however, the country’s educational ministry still remains muted and latent with respect to the procedures of schooling to be taken to set up the compulsory law of education. Apart from this, the “violence against women and girls continues to be one of the critical problems in this region. Women in these areas are undergone some kinds of violence by armed forces, Iraqi policies, and militias. On the other hand, the extensive functionality of the death punishment, torment, and inhuman behaviors and standards are widely practiced in Iraqi prisons, therefore, the severe influences of the myriad breaches of the rules of war by Iraq armed forces, groups, and policies have lingered in civil society for a long time.[8] Thus, in the case of Iraq’s cultural values and morality, it can never be justified in terms of gender equality, because this country only validates itself to engender violence and antagonist actions toward its society, in particular women. Why? – Is the maintenance of human rights composed of these types of behaviors? In this region, promoting antagonist manners and behaviors toward society, rather than upholding universal sets of values and standards of human rights can not give meaningful benefits to this country.

In addition, it should be emphasized that at the same time, Israel articulated its anxieties regarding, severe methods of capital punishment, discrimination, violence, in particular, forced marriages methodically engaged against women and girls.

When it comes to Latin American countries, it can be useful to focus on the traditional manners and roots of Cuba. According to this country, the UN Compilation gives data to form autonomous human rights institutions and associations and boost contributions to the international system. Cuba experiences torture, discrimination, prison circumstances, arbitrary detentions, domestic violence, the conditions of prostitution and other forms of violence against women. In the instance of Cuba, the UN promotes basically substantial reforms on human rights. According to this situation, in 2006, “Cuba tried to mention its motivation in order to support cultural rights and the respect for cultural diversity and the promotion of peace for the satisfaction of all human rights.

However, Cuba stands in the same position in order to maintain conventional rights and international-third generation values and standards in human rights issues.”[9] Hence, basic cultural differences cannot justify the universal values and standards of human rights. In most cases, cultural relativism leads to the conditions of despotism and antagonism, in Asian, the Middle Eastern and some parts of Latin American countries, through these methods, it can not maintain human rights within society. If cultural relativism merely focuses on strong authentic moral and ethical basis rather than supporting the alternative methods of providing human rights universally, these types of roots can lead to colossal gaps between Eastern and Western societies in the contemporary world order. Eventually, we tend to realize that reciprocal respect and understanding between people can cause the inclusive implementation of human rights from both universalism and relativism perspective in civil society. Through reaching to reconciliation processes of the two main approaches of human rights, our civil society can create relative universal sets of values and behaviors by taking into account both relativism and universalism.

We try to comprehend that many Eastern and Asian countries will not justify the strong universal basis and sets of human rights in future life expectancy. Regarding the fact that their community, in particular, each human being depends on the authentic self-governing rules, traditional set of values and basis. Transmitting from these kinds of values into the burly standards of human rights can be arduous for them that how can they behaved under the rules of these common standards. Universalism is not about everything for them, but at the same time, if universal sets of values can be implemented in some Eastern and Asian countries, firstly, their social communities have to eager to alter their customary ethical and moral natures into the central standards of human rights take on universal nature of human rights.

[1] Universality of Human Rights,  Dr. Peter Kirchschlaeger, Co-Director of the Centre of Human Rights Education, University of Teacher Education of Central Switzerland – Lucerne, http://www.theewc.org/uploads/files/Universality%20of%20Human%20Rights%20by%20Peter%20Kirchschlaeger2.pdf

[2] Michael Goodhart*, Human Rights Quarterly 25 (2003) 935–964 © 2003 by The Johns Hopkins University Press Origins and Universality in the Human Rights Debates: Cultural Essentialism and the Challenge of Globalization, pp 4-5, http://hmb.utoronto.ca/HMB303H/weekly_supp/week-02/Goodhart_Cultural_Essentialism.pdf.

[3] Franz Boas 1887 “Museums of Ethnology and their classification” Science 9: 589

[4] http://www.gotquestions.org/cultural-relativism.html , what is cultural relativism?

[5] Cultural Relativism and Universal Human Rights Author(s): Jack Donnelly Source: Human Rights Quarterly, Vol. 6, No. 4 (Nov., 1984), pp. 400-419 Published by: The Johns Hopkins University Press Stable URL: http://www.jstor.org/stable/762182.

[6] Cultural Relativism and Universal Human Rights Author(s): Jack Donnelly Source: Human Rights Quarterly, Vol. 6, No. 4 (Nov., 1984), pp. 406-414 Published by: The Johns Hopkins University Press Stable URL: http://www.jstor.org/stable/762182.

[7] http://www.univie.ac.at/bimtor/dateien/pakistan_upr_2008_info.pdf, Human Rights Council Working Group on the Universal Periodic Review Second session Geneva, A/HRC/WG.6/2/PAK/1 of 14 April 2008, Para. 74.

[8] A/HRC/WG.6/7/IRQ/3 1, http://www.univie.ac.at/bimtor/dateien/iraq_upr_2010_summary.pdf,  Human Rights Council, Working Group on the Universal Periodic Review Seventh session Geneva, 8-19 February 2010;

[9] A/HRC/WG.6/4/CUB/1 4 November 2008, http://www.univie.ac.at/bimtor/dateien/cuba_upr_2008_report.pdf  Human Rights Council Working Group on the Universal Periodic Review Fourth session, Geneva, 2-13 February 2009.

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International Law

The 21st Century: The Century of Reforming The UN Security Council

Raiis Gassanly

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Reforming the UN SC with the veto power only of the UN Secretary General and a new article of the UN Charter “On the Rights of Nations to Self-Determination” will eliminate the aggressive fervor of the USA, Russia and China on inciting regional and world wars on our Planet.

On July 19, 2017, at the meeting of the UN General Assembly devoted to the reform of the UN SC, the Deputy Permanent Mission of Russia to the UN V. Safronov raised the issue of the reform of the UNSC. He proposes to expand the composition of the Security Council at the expense of only the countries of Asia and Africa, which is a formal attitude towards the UN, as the most important organ in the fate of the countries of the world in maintaining international peace and security on our planet.

In my opinion, the expansion of the UN SC should cover the most important countries from all continents of our Planet. At the same time, in the absence of members rights to the veto, which will allow discussing in the UN SC the most important problems of the countries of the world with relevant resolutions for the reality of their execution.

Below I cite my draft reform of the UN SC, which differs radically from the proposal of the representative of the Russian Federation, the United States and other countries to the United Nations.

REFORMING THE UN SC WITH THE RIGHT OF THE VETO OF THE UNSC

Mankind is at the forefront of a direct collision between the United States and Russia or China on the basis of their geopolitical and geostrategic interests in their regions and countries of the world. As a fact, the UN SC has long been in the position of a “Chinese observer” – a passive observer of the aggressive actions of the leading empires with their invasions into the countries of the world, beginning in the middle of the XX century to this day in Asia, Europe and the Middle East.

And as the consequences of these invasions, there is complete ruin of the regions and the infrastructure of countries, the massive death of civilians and the flow of refugees, which, in turn, leads to global problems in Europe and the USA.

This bloody large-scale process continues to this day since 2000 year, where, finally, from 2015 year, the interests of the powers of the USA and Russia collided directly with their heads in the Middle East in order to display their monopolistic geostrategic positions in specific regions of the world. In turn, the confrontation between the US and Russia is urgently needed by the time of the shaky regime of President Vladimir Putin, when the material condition of the population and the country’s infrastructure is cracking along all the seams with a weak economy.

A rhetorical question arises: what is the leading role of the UN and its main body of the Security Council, as an international organization of all countries of the world? The UN was created, on the one hand, to prevent world and regional wars with disastrous consequences due to Man’s fault, as heads of leading empires and countries of the world. On the other hand, to prevent natural disasters and disasters for the population of the Planet, such as nuclear power plant explosions, tsunamis, earthquakes, meteorite falls, landslides, tectonic collisions and much more.

The creation of the UN in 1945 pursued international cooperation of the countries of the world in political, economic, scientific, cultural, sports and other types of relations, regardless of their political, social, national and religious conditions.

The basis of the UN SC is the primary responsibility for maintaining peace and security in the countries of the world, suppressing not only regional and world wars, but also separatism on interethnic and interreligious soil. At the same time, all UN members are obliged to obey the decisions of the UN SC and their implementation.

A rhetorical question arises: why does the UN SC, from the date of its emergence to this day more than 70 years, fail to fulfill its direct responsibilities for maintaining peace and security, against the background of the regional wars in the world? Why does the UN SC not consider the causes of the emergence of aggressive bloody wars at the level of civilian deaths, mass refugees and the devastation of their cities by major powers? Why does the UN SC not give a proper assessment of the actions of countries like the USA, the former USSR, its successor to Russia and other specific countries of the world? Why does the UN SC not control over the years the course of action of the resolutions on specific countries, which it adopted, and does not put forward at the same time sanctions? Who and why is interested in this when the bill for these wars is no longer in millions and billions of dollars, but in the end in trillions? Whereas the US debt is $ 23 trillion, when the largest historical power of the USSR disappears, and the economy of its successor to Russia today is not detached from the muddy bottom.

According to the UN Charter, countries of the world have authorized the UN SC to “investigate any dispute or situation that may lead to international friction or cause a dispute to determine whether the continuation of this dispute or situation could not threaten the maintenance of international peace and security.” However, even today, the UN SC ignores all bloody events in the countries of the world. What is the reason for not fulfilling the duties of the UN SC?

As a vivid example, the outcome of the Second World War in early 1945 was predetermined by the defeat of Nazi Germany, and at the same time aggressive Japan, and does not give a proper assessment of these US nuclear strikes with the massive deaths of more than 200 thousand people and the complete devastation of two cities in Japan. And this, in turn, allows the former USSR in 1961 to provoke the Cuban nuclear crisis with the United States, and then its successor Russia to threaten nuclear ashes for the United States and European countries.

There was also no assessment of the actions of the authorities of England, which led to the ruins, like Stalingrad in 1943, the beautiful city of Dresden with historical museums just for the fact that the world criminal of Nazi Germany Adolf Hitler steadily bombed and destroyed their cities.

So, with the tacit consent of the UN SC, the wars since 1945 have not only stopped, but, on the contrary, have become more frequent in the regions of the world due to the following, in my opinion, reasons. These include the achievement of priorities of the geopolitical and geostrategic interests of the nuclear superpowers in the regions of the world; dividing the world with the destruction of contradictory social systems, capitalist or formerly communist, and today simply Putin’s; intervention in dictatorial and authoritarian countries with their centuries – old Muslim orders and traditions in order to introduce the “democratic values” of Europe; the implementation of “historical justice” with the aim of reviving the centuries – old imperial territories like Tsarist Russia; the emergence of two or more sovereign states for the same nation in the absence of an article in the UN Charter “On the Rights of Nations to Self-Determination” with the dual policy of the countries.

With the collapse of the USSR, the hegemony of the one polar world politics of the United States over the countries of the West and the world is established. And this, in turn, allows the United States to pursue an independent foreign policy in the world, ignoring their consideration and the consent of the UN SC itself.

As two vivid examples of this, on the one hand, the United States, using the tragedy of September 11, 2001 in New York, killed about three thousand civilians in the skyscrapers at the hands of the terrorist organization Al Qaeda. On the other hand, the former USSR in 1979, without the resolutions of the UN Security Council, they sent their troops into Afghanistan under the slogan of creating “democratic institutions” in the ancient Muslim country. And this process continues to this day at the level of the civil war in the country of Afghanistan.

Without the relevant resolutions of the UN SC, the US in alliance with the countries of Europe has been waging an aggressive war from 2003 to this day in the countries of the Middle East – Iraq, Libya and Syria, with Russia joining in 2015. As a result, a self-proclaimed state of ISIL is born at the level of the ancient laws; complete devastation of cities with a massive death of the population and refugees in millions of people in the countries of the world.

All this speaks of the real viability of the UN regulator and the UN SC itself.

It follows that the Third World Nuclear War has not yet erupted with disastrous consequences for all of Mankind with its possible disappearance, it is necessary to reform the UN SC. At the same time, with all the discussions and resolutions adopted by him, the UN Secretary General should actively participate personally with the sole voting right granted to the UN SC resolutions. For he represents a responsible person for the destinies of the countries of the world – all the UN members, with the goal of actually protecting them the international rights of the countries of the world, regardless of their social systems, as dictatorial, authoritarian or democratic regimes.

The UN SC has the right to “determine the existence of any threat to peace, any violation of peace or an act of aggression and make recommendations or decide what measures should be taken to maintain or restore international peace and security.” The Security Council has the right to impose coercive measures on States violating peace and security, including the use of armed forces and certain sanctions, in accordance with Article 25 of the UN Charter. However, the UN SC cannot really use this right, because its members, like the United States and Russia, pursue a policy of double standard, using the veto right when they need it.

INCREASE IN THE NUMBER OF UNSC UN MEMBERS RIGHT TO VETO

All of the above on the aggressive actions of the powers and countries of the world is explained, in my opinion, on the one hand, by the existence of the rights of the five permanent members of the UN SC to vote, veto for consideration, discussion and adoption of resolutions contradicting their foreign or domestic policy, promoting this geostrategic and geopolitical interests that go against the protection of the rights of civilians and the preservation of their places of residence. On the other hand, the five permanent members of the UN SC are not able to cover and specifically find out the pressing problems in the countries of the world with their solutions.

That is why since 1991, the United States used the veto more than 14 times, and Russia more than 13 times, which resulted in catastrophic consequences in the world, in the examples of the countries of the Middle East, Afghanistan, Ukraine, Azerbaijan, Georgia.

Countries around the world, including personally former UN SG Kofi Annan, made repeated statements on reforming the UN SC with the goal of increasing the number of permanent members, but without making any reservation about eliminating the veto power, which allows imperial countries to manifest geostrategic and geopolitical countries, at the root of their rights interests in the regions of the world.

In my opinion, in view of the above, the reform of the UN SC should be in the following order:

1. increasing the number of permanent members of the UN SC to 15 at the level of strategic and solvent countries – representatives of all continents of our Planet;

2. increasing the number of non-permanent members of the UN SC to 10, periodically replaced after 3 years, taking into account their solvency and significance in the regions of the continents of the Planet;

3. exclusion of the right to vote of the veto of all members of the UN SC;

4. all the issues discussed and the resolutions of the UNSC are adopted taking into account the majority of their votes and

5. oblige active participation in the activities of the UN SC by the UN SG, precisely with his right to vote in veto on questions and UN Security Council resolutions.

The current UN SC permanent members, as the countries of the anti-Hitler and Japanese-Chinese coalitions where the world wars took place, should remain on the UN SC list.

Further, we should take into account countries with their geographical location and importance in the regions of the continents of the Planet by the number of their population, religiosity, the power of their economy and armed forces.

Based on the foregoing, in my opinion:

A. permanent members of the UN Security Council should be: the United States, Russia, China, England, France, Germany, Italy, Ukraine, Kazakhstan, India, Indonesia, Turkey, Egypt, Brazil, Argentina; that is, there are 15 of them, and

B. non-permanent of the UN SC — periodically replaced every three years: Greece (Belgium, Bulgaria, Holland); Poland (Switzerland, Czech Republic, Romania); Denmark (Sweden, Norway, Finland); Azerbaijan (Belarus, Georgia, Armenia); Uzbekistan (Turkmenistan, Kyrgyzstan, Tajikistan); Japan (Philippines, Malaysia, Australia, South Korea); Pakistan (Iran, Saudi Arabia, Iraq); Israel (South Africa, Nigeria, Algeria, Tanzania); Chile (Colombia, Venezuela, Peru); Mexico (Canada. Paraguay); i.e. there are 10 of them.

Thus, in my opinion, the composition of the UN SC should consist of 15 permanent members and 10 non-permanent members. All of them do not have veto power.

In my opinion, a neutral person in the UN should have the right to vote the veto on the topics proposed for discussion and resolutions adopted on them by a majority of the UN SC votes. And this person, who will bear all responsibility for the activities and decisions taken by the UN SC, is none other than the UN Secretary General. This is similar to how in all countries of the world the final solution of the problem of war and peace is provided to the first person of the country – the President or the Premier. And this is my answer to the newly elected 45th President of the United States Donald Trump, who in one of his speeches of December 13, 2016, said: “As for the UN, from January 20, 2017, the organization will be different.” And in his inaugural address, he noted his US vision for the future: “America is first and foremost.” It is his concept of tensile and double meaning. At the same time, he did not mention about the countries of cooperation, including NATO, where the United States plays the leading role. Thus, the EU countries should realize that they can no longer hope for close cooperation and patronage from US.

We must look for ways to strengthen our role, at least in Europe, while not forgetting that it is precisely the reform of the UN SC and with the majority and solidarity of members that will allow them to influence the politics of the world.

It should be recalled that in 2000, the administration of former US President Bill Clinton agreed to expand the UN SC to more than 23 members. However, with the right to vote only to the permanent five members of the UN SC. Since the inception of the UN, the UN SC has been criticized to this day because of the voting rights of its five permanent members to decisions that could harm both their country and others in the world.

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