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The normative context in defining ‘refugees’

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Photo Credit: © UNHCR/Ivor Prickett

Contextual challenges in recognizing refugees

The Refugee Convention articulates that for any person to be qualified to be a refugee that person must have been outside from the country of his nationality due to the fact of a well-founded fear of being persecuted for reasons of race, religion, nationality, member of a particular social group or for having a particular political opinion. However, the Convention also in its stand approves that any person who has already been considered as a refugee under any treaty arrangements prior to this Convention would also be considered as refugees. The definition provided in the Convention is comprehensive, in a way that considers the cultural changes, and the interpretation includes the fear of persecution not only by the state actors but also by non-state actors.

However, there are also a number of restrictions, such as if a person voluntarily re-availed him or herself of the protection of his/her country of nationality, or has voluntarily reacquired the nationality of their state, the definition of refugees would not be applicable.  Further, if the state ceased to exist under the ‘cessation’ clauses, although according to the UNHCR, such clause required to be invoked sparingly, there is a possibility where the person may not fit within the definition provided by the Convention.  Nonetheless, the provision in the Convention so far has been interpreted broadly, in a way that the refugee status will not be considered to be ceased as long as the situation in the state of origin remains a danger.

Irrespective of these restrictions, the Convention remains as the central pillar, customarily interpreted in reflecting its objective and purpose of it – protecting individuals in need. Although in cases the general instability was found as a factor which is inconsistent to the prevent cessation of status, particularly due to the effect of persecution, it has also been considered as a viable internal alternative, which demonstrates that the customary interpretation of the Convention is limited. In other cases, the general instability was found as a ground for subsidiary protection that said, although the Convention fails to provide the required protection, still the state is obliged to grant such protection. Further, the Convention contemplates that irrespective of the condition of persecution remains a qualification, an individual could still qualify as a refugee given the fact there are compelling reasons arising from the previous persecution, commonly referred as ‘exemption from cessation.’ This exception applies only to the ‘statutory’ refugees, i.e. individuals who are eligible as refugees under the Article 1A (1) of the Convention: who were prior to the Convention were recognized as refugees. Further, the state practice is also contributing in extending the ‘exemption from cessation’ in protecting Convention refugees, irrespective of the fact, that the UNHCR noted clearly that such interpretation is not required by the Convention.

Nonetheless, the extent of the state practice creates now the customary norm, requiring this application, to be a purposive one. However, limitation applies under the exclusion clauses from the protection of non-refoulment to anyone qualify as a refugee under the serious reasons for consideration for have committed a crime against peace, war crime or crime against humanity or poses a compelling threat to national security or public order to the security of the country of refuge, where the individual who has already qualified as a refugee would subsequently lose the status. Note, however the exclusion clauses themselves have exceptions, such as child soldiers, decided in the case of AG v Zaoui by the Supreme Court of New Zealand, reflected on refoulment that goes hand and hand with the jus cogens status on preventing torture, noted that “[t]he prohibition on refoulment to torture has the  status of a peremptory norm or jus cogens with the consequence that article 33.2 [of the Refugee Convention] would now be void to the extent that it allows for [refoulment in such circumstances].” This implication of flexible application of the Convention was not only followed throughout the judicial decisions but also by legislative actions such as by the Council of Europe on the Recommendation 773, which recommended the European Union members to apply the definition of refugee liberally as amended by the Protocol of the Convention.

Evolution of a definition under the customary international law

As discussed above although the Convention has not amended explicitly in revising the definition of refugees, it has been customarily broadly interpreted as to justify the object and purpose. Although there has been an argument that the definition of refugees does not appear under the customary international law, but under treaty law, authors alike Hailbronner believes that the international obligation to grant protection to the victim is a ‘wishful legal thinking’, thus reflection through the state practice is a viable option. The American Society of International Law also produced that the human rights instruments are required to be read as a whole, thus protection prescribed in the Convention could be applicable to persons who enjoy any sort of non-refoulment. Thus, non-refoulment is a general principle, which Bazo also agrees that any individual who has the right to be protected under the international law must be covered by the definition of refugees. However, these arguments would be only valid if there are an extensive state practice and opinio juris to support the argument.

Regarding the state practice in expanding the definition of refugees, the reason for the primary expansion is because of civil wars, ethnic and communal conflicts and natural disasters, and of the acceptance that the international law can expand itself through custom. The Statue of the International Court of Justice prescribes that ‘evidence of a general practice accepted as law is law’ based on two elements: state practice which is described as a widespread and consistent practice of the states and opinio juris, the subjective belief of the state that engages in that practice, believing it as a requirement, not as an option. In this context, the statistics reveal that according to the UNHCR around 9 million individuals who have been identified as refugees, deserve protection, which from the state practice guidance provided in the case of North Sea Continental Shelf and of the history of the states to recognize and receive refugees to their respected nations represent the widespread practice, further be recognized not only through the subjective believe that it is the responsibility to protect refugees under the outgrown opinion juris, but also an international obligation under the treaty provisions such as Conventions Against Torture (CAT), and of the peremptory norm, jus cogens.

Defining Refugee through International Agreements

Although number of international instruments address the refugees in various stands, the Convention of the Organization of African Unity (OAU) on Refugees expands the definition of refugees includes, the people who displace due to the ‘external aggression, occupation, foreign domination or events seriously disturbing public order.’ Although there have been arguments that the intention of the drafters of the Convention was reflecting the post-colonial context, the fact that the Convention was signed by a number of largest recipients of refugees including Kenya, Uganda, Sudan, Zambia, Egypt and Tanzania makes the validity of the claim of the Convention in expanding the definition of refugees. In one step further, the states such as South Africa, Tanzania and Uganda adopted the Convention into their municipal laws impacts on the state practice, form a customary international law in expanding the scope of the definition of refugees. As such, the Bangkok Principles on the Asian -African Legal Consultive Organization also claims similar expansion in the definition of refugees, specially accepts the concept of refugees sur place, also claims the definition to cover any individual who was expelled from a state where his or her life or liberty is threatened for the reasons of race, colour, nationality, ethnic origins, etc.

The Cartagena Declaration focused on the forced migrants in Central and South America noted that Article 1(2) of the OAU Convention as the starting point of defining refugees, the declaration was although not legally binding in nature, endorsed by the Organization of American States, the UNHCR Executive Committee, further cited in the Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americans. It was signed and ratified by most of the American states, including Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua and Venezuela. The Mercosur Rio de Janeiro Declaration further provided expanded definition includes not only to the individual whose life is threatened for the reasons of race, colour and nationality etc., as provided in the previously discussed declarations, but also the victims of a generalized violation of human rights. The declaration itself expresses the state practice by accepting the geographically diverse practice to support the existence of the customary international law.

The Refugee Convention, its Protocol of 1967, and the Protocol relating to the Status of Refugees 2001 attribute the expanded version of the definition of refugees, also affirms the important of the human rights and regional refugee protection instruments which by doing it expresses the obligation of the states to carry the burden for the stronger existence of opinio juris.

There has been also the subsidiary protection provided in the international agreements based on the context of persecution, often those individuals protected are referred as de facto refugees: the refugees who need are seen as legitimate, however, they would not qualify under the Convention. However, looking at the intention of the drafters of the Convention, it is expressed that the provisions of the Convention can be interpreted in a way to cover these expanded group of persons. However, there has been debate about this status, which was particularly addressed by the European Union in the context when considering the minimum standard of the directive failed to cover subsidiary protection. Although the directive models the Article 1(F) of the Convention, there has been no legal obligation to follow the terms, nor required to be supplemented by humanitarian assistance. Nonetheless, there are a number of international treaties calls for the subsidiary protection, such as the International Covenant on Civil and Political Rights (ICCPR) and the CAT in particular, the Article 3 which prohibits refoulment of a person, ‘where there are substantial grounds for believing that he would be in danger of being subject to torture.’

The European Convention on Human Rights and the American and African Charters make similar provisions on torture, establishes that the protection must be given to an individual when he is in ‘real risk.’ The EU Minimum Standards Directive 2004 particularly requires the member states to receive asylum application on the basis of the subsidiary protection who cannot go back to the country of origin because of serious harm, which includes death penalty or execution, torture and inhuman treatment or any other form of serious and individual threat to the civilian’s life by indiscriminate violence caused by the international or non- international armed conflict.

The state practice and the opinio juris have also been recognized in the context of refugees by the practice and mandate of the UNHCR that contributes to the formation of customary international law. It is because the organization embodies the state practice through being represented by the state delegates, or where the state cites the mandate of the organization being supervisory expresses opinio juris that the legal standards applied by the organization are accurate and the delegation by the states to the UNHCR could determine the status of refugees. In this context, the practice of the UNHCR cannot be dismissed, a representative opinio juris that is effective.

The Council of Europe through its Recommendation 18 of 2001 and by case laws such as in the case of Elgafaji v. Staatssecretaris van Justitie, Case C-465/07, 2009 E.C.R., argues for the qualification for the subsidiary protection which does not require to be a specifically targeted for harsh treatment, but as far is it fulfill ‘serious and individual treat’ due to the indiscriminate violence. It is to note that the EU did not broaden the definition of refugees, but provides legal standings for subsidiary protection, an expression of the opinio juris for the subsidiary protection.

Normative restrictions on the definition of refugees

Although the above discussion expresses that the definition of refugees has been expanded in a way to cover individuals, not just those facing the risk of persecution, there are also the existence of the negative impact of the customary international law that narrows the definition, particularly when there is a treaty provision which contrasts to the intention of the customary international law in this matter in particular.

One method the states adopted in narrowing the scope of the application of refugee law is by interpreting the territorial application of the Convention, which affects the determination of when an individual is outside his country of nationality. For an example, the US Supreme Court ruled that the Convention is not applicable outside the territory of the United States, whereas Russia interpreted in the same manner, along with interpreting the definition of territory.

The second method is by providing alternative relocation. Courts found when there is a possibility for the individual to relocate within the state of nationality, the application for refugee status can be rejected. However, in this context states found it from two approaches. First is to see whether there is genuine access to the areas of domestic protection, where the state can ensure the protection is meaningful, and the protection is not unpredictable. The second approach is comparing the situation of the area where the individual currently situated and the characteristic of the proposed area of protection, which is the approach the UK finds through the case laws since the first approach does not go along with the EU Council Directive 2004/83/EC.

The third method of the states enforce is applying the third country or safe country of origin tests to refuse the claims for asylum, in the basis that if the individual is coming from a country that has been deemed safe, then there is no requirement to provide asylum.

The fourth method is enforcing prohibitions on applying for recognition of refugee status through regulations under certain circumstances. Although it in first hand appears as it does not narrow the definition of refugees, but the fact the burden of proof is placed on the applicant that he has no disqualifying act or condition such as in the cases of terrorist suspects, such as in the case of Bundesrepublik Deutschland v. B, Case C- 57/09, 1990 E.C.R. and Bundesrepublik Deutschland v. D., Case C-101/09, 2010, severely affects the scope of being defined as a legitimate refugee. Further, broadly interpreting the acceptable criteria that the Convention spells out for refusing the refugee status, have certainly undermined the scope of the Convention, that indirectly impact in the definition and scope of refugees.

The fifth method is providing diplomatic assurances while refusing to accept the refugees, which is still remaining controversial. It was argued against by the UN Special Rapporteur on Torture as an ineffective approach has been used by states. The MOU signed by the UK with Jordan, Libya and Lebanon to provide blanket assurance is a clear example of it, which the Council of European Commissioner for Human Rights argued that “[t]he weakness inherent in the practice of diplomatic assurances lies in the fact that where there is a need for such assurances, there is clearly an acknowledged risk of torture or ill-treatment.”

In these contexts, this essay concludes that although normatively the definition of refugees has extended, the governments have been using different mechanisms in restricting the scope of it by not willfully restrict the definition, or contrast the customary international law, but by going around the definition, that has substantially weakened the entire legal scope of the extension of the definition so far has been built up by the customary international law.

Janakan Muthukumar is a young academic, currently undertakes a research project at the University of Toronto on G7 commitments on International Security. He holds an LLM in International Law from the University of London, UK and a Master in Human Rights and Democratisation at the University of Sydney, Australia. His research focuses on armed conflicts, counterterrorism and counterproliferation.

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International Law

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

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

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

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

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

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

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

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

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

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

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

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International Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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International Law

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

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

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

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

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

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

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

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

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

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