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The clash of human rights ideas between universalism and relativism

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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.

Ms. Nargiz Hajiyeva is an independent researcher from Azerbaijan. She is an honored graduate student of Vytautas Magnus University and Institute D'etudes de Politique de Grenoble, Sciences PO. She got a Bachelor degree with the distinction diploma at Baku State University from International Relations and Diplomacy programme. Her main research fields concern on international security and foreign policy issues, energy security, cultural and political history, global political economy and international public law. She worked as an independent researcher at Corvinus University of Budapest, Cold War History Research Center. She is a successful participator of International Student Essay Contest, Stimson Institute, titled “how to prevent the proliferation of the world's most dangerous weapons”, held by Harvard University, Harvard Kennedy School and an honored alumnus of European Academy of Diplomacy in Warsaw Poland. Between 2014 and 2015, she worked as a Chief Adviser and First Responsible Chairman in International and Legal Affairs at the Executive Power of Ganja. At that time, she was defined to the position of Chief Economist at the Heydar Aliyev Center. In 2017, Ms. Hajiyeva has worked as an independent diplomatic researcher at International Relations Institute of Prague under the Czech Ministry of Foreign Affairs in the Czech Republic. Currently, she is pursuing her doctoral studies in Political Sciences and International Relations programme in Istanbul, Turkey.

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International Law

UN at 75: The Necessity of Having a Stronger & More Effective United Nations

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October 24, 2020, marks the 75th anniversary of the United Nations. In this context, this article investigates the necessity of having a stronger UN for the benefits of the world’s people. In fact, if one looks at the past, the UN came up in 1945 in response to the Second World War for a more stable, secured, and peaceful world. And the UN has been successful to a larger extent to that goals and objectives, many argue. Kofi Annan, the former UN Secretary-General for instance, wrote that ‘The United Nations, with their rules and institutions, are at the heart of the international system. They encourage States to prevent or settle disputes peacefully. The United Nations speaks for the voiceless, feeds the hungry, protects the displaced, combats organized crime and terrorism, and fights disease across the globe’ (Annan 2015).

If one looks at the history, after the Second World War, there are not so many wars on a large scale or conflicts except some bilateral Wars like Vietnam War or Iraq invasion in Kuwait or US invasion in Afghanistan or Iraq or Syrian crisis or Rohingya crisis. One can claim that the present world is more stable and peaceful than the world before the Second World War. Against this backdrop, Ramesh Thakur rightly observes, ‘On balance, the world has been a better and safer place with the UN than would have been the case without it (Thakur 2009:2). And it will not be wrong to claim that the United Nations Security Council (UNSC) is playing a crucial role in this regard, focusing both on ‘hard’ and ‘soft’ security issues. Hard security issues ranges from nuclear threat to international terrorism and soft security issues include human security issues to human rights to international criminal justice and international sanctions (For details see, Thakur, 2009).

The UN is not only concerned about international peace and security but also concerned about economic and social issues. There are several UN organizations e.g. United Nations Development Programme (UNDP), World Food Programme (WFP) or the United Nations High Commission for Refugees (UNHCR) which is involved in socio-economic issues that impact millions of people globally.

First, one can look at the role of the UN General Assembly to understand the necessity of having a more robust UN. It is the core organ of the UN. It is the only organ in which all the member countries are represented all of the time. The role of the UN includes to pass resolutions and to create subsidiary agencies to deal with particular issues (Barkin 2006: 58). UN General Assembly works as a forum where the world’s states meet and discuss the pressing global problems. In this context, Eleanor Albert, Leo Schwartz, and Alexandra Abell write that ‘Since its inception seventy-one years ago, the United Nations General Assembly has been a forum for lofty declarations, sometimes audacious rhetoric, and rigorous debate over the world’s most vexing issues, from poverty and development to peace and security’ (Albert et al. 2016). However, in September 2015, the Assembly agreed on a set of 17 Sustainable Development Goals, contained in the outcome document of the United Nations summit for the adoption of the post-2015 development agenda (resolution 70/1). Notably, the implementation of SDG goals will have broader implications for the world’s people.

In addition, the Assembly may also take action in cases of a threat to the peace, breach of peace or act of aggression, when the Security Council has failed to act owing to the negative vote of a permanent member. In such instances, according to its “Uniting for Peace” resolution of 3 November 1950, the Assembly may consider the matter immediately and recommend to its Members collective measures to maintain or restore international peace and security.

Second, one should also look at the role of the Security Council to make the case of having a stronger United Nations. The UN Security Council is the most powerful security-related organization in contemporary world politics. As the Charter of the United Nations says: ‘the Security Council has primary responsibility for the maintenance of international peace and security (Article 24). The Security Council takes the lead in determining the existence of a threat to the peace or act of aggression. It calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment or terms of the settlement. In some cases, the Security Council can resort to imposing sanctions or even authorize the use of force to maintain or restore international peace and security’

In contemporary world politics, the UN Security Council is the most potent security-related organization because it is the only recognized and legitimate international organ which deals with international peace and security. In this regard, Justin Morris and Nicholas J. Wheeler claim that ‘The United Nations Security Council is at the heart of the world’s collective security system’ (Morris and Wheeler 2007: 214). The UNSC play role by passing Resolutions regarding maintaining international peace and security, determining threats to peace and security and finally undertaking peacekeeping operations.

Decisions made by the Security Council are known as the Security Council resolutions. Examples of Security Council resolutions include Resolution 794 (1992), which authorized military intervention in Somalia on humanitarian ground, or the resolution 1325 (2000), which called on states to recognize the role of women in peace, and security and post-conflict situations. In the UN Security Council Working method Handbook, it is noted that the UNSC has adopted over 2,000 resolutions relating to conflict and post-conflict situations around the globe. Another report, titled Repertoire of the Practice of the Security Council noted that between 2008 and 2009, the Security Council adopted  35 out of 65 resolutions in 2008 (53.8 %), and 22 out of 47 resolutions in 2009 under Chapter VII (46. 8 %) concerning threats to the peace, breaches of the peace or acts of aggression. The report also notes about several UN resolutions authorizing United Nations peacekeeping missions. In connection with the mission deployed in the Central African Republic and Chad, the Council approved the deployment of a United Nations military component for the first time in 2009 to follow up operations by the European Union in Chad and Central African Republic (EUFORChad/CAR). The Council continued to authorize enforcement action for United Nations peacekeeping missions in Côte d’Ivoire (UNOCI), Darfur/Sudan (UNAMID), the Democratic Republic of the Congo (MONUC), Lebanon (UNIFIL) and Sudan (UNMIS). This increased number of UNSC Resolutions dealing with international peace and security reinforces its legitimacy and power as a security organization.

The critical question that comes into the forefront is how much UNSC can implement its mandates neutrally or independently in terms of maintaining world peace and security. The critiques bring the example of Iraq war (2003) where UNSC ‘faces a crisis of legitimacy because of its inability to constrain the unilaterally inclined hegemonic United States.’ (Morris and Wheeler 2007:214). Another critical question is the role of UNSC in resolving the long-standing Syrian crisis or the Rohingya refugee crisis.

It is undeniable the fact that UNSC cannot function with its full potentialities due to the challenges and limitations it faces because ‘in their pursuit of raisons d’état, states use whatever institutions are available to serve their interests’ (Weiss 2003: 151). And here comes the politics in the Security Council which is highly manifested in the past. Against this backdrop, Weiss correctly observes, ‘the politics of the UN system- not only the principal organs of UN like Security Council or General Assembly is highly politicized but even ‘technical’ organizations, for instance, World Health Organization or the Universal Postal Union continue to reflect the global division between the so-called wealthy, industrialized North and the less advantaged, developing South’ (Weiss 2009: 271).

It is, therefore, states and particularly the P5 want to use the Security Council as a means to uphold its interest. Gareth Evans rightly points out ‘for most of its history the Security Council has been a prisoner of great power manoeuvring…’ (Evans 2009:Xi).  Hence, using veto by the P5 remains a significant challenge for the UNSC to work in its fullest potentials. In the recent case of the Rohingya refugee crisis, the UNSC is unable to take adequate measures due to veto power used by China and Russia. However, the UNSC is responsible for maintaining world peace and security.

The bottomline is that there is no alternative to having a stronger and more effective UN because it is the only hope for millions of people around the world. The UN is an inevitable international organization in this turbulent world despite its criticism or limitations.Thus, it becomes essential for the P5 nations to think about the broader benefits of the world’s people instead of their narrowly defined interest in the case of using veto power. And the world also needs to acknowledge that the UN reform has been a reality to ensure the neutrality and objectivity of the United Nations for a more peaceful, stable, secured world.

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The United Nations and the Neglected Conflict of Kashmir

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The principle of ‘right of self-determination’ and its applicability to the 72-year-old Kashmir conflict needs to be considered during the 75th session of the Fourth Committee of the United Nations General Assembly that is taking place between October 8 to November 10, 2020 at its headquarters in New York. The Committee will discuss and deliberate the issues related to international conflicts and decolonization. What I do hope to offer is an unstarry-eyed view of the fate of self-determination in Kashmir; and, the indispensability of convincing the United Nations that international peace and security would be strengthened, not weakened, by resolving the Kashmir conflict to the satisfaction of all parties concerned..

The self-determination of peoples is a basic principle of the United Nation Charter, which has been reaffirmed in the Universal Declaration of Human Rights, and applied countless times to the settlement of international disputes.

The concept seems to be as old as Government itself and was the basis of French and American revolutions. In 1916, President Wilson stated that self-determination is not a mere phrase. He said that it is an imperative principle of action and included it in the famous 14-point charter. This gave a prominence to the principle. Self-determination as conceived by Wilson was an imprecise amalgamation of several strands of thought, some long associated in his mind with the notion of “self-determination,” others hatched as a result or wartime developments, but all imbued with a general spirit of democracy.

Self- determination is a principle that has been developed in philosophic thought and practice for the last several hundred years. It is an idea that has caused people throughout the world to rise up and shed the chains of oppressive governments at great risk.

Finally, in 1945 the establishment of the UN gave a new dimension to the principle of self-determination.  It was made one of the objectives, which the UN would seek to achieve, along with equal rights of all nations. Article 1.2 of the Charter of the Untied Nations reads: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.”

From 1952 onwards, the General Assembly of the UN adopted a series of resolutions proclaiming the right to self-determination. The two most important of these are resolution 1514 (XV) of 14 December 1960 and resolution 2625 (XXV) of 24 October 1970. Resolution 1514 was seen almost exclusively as part of process of decolonization. 1514 is entitled: Declaration on the Granting of Independence to Colonial Countries and Peoples.”

International Court of Justice considered the several resolutions on decolonization process and noted:  “The subsequent development of International Law in regard to non-self governing territories as enshrined in the Charter of the UN made the principle of self-determination applicable to all of them.”  This opinion establishes the self-determination as the basic principle for the process of de-colonization.

The principle of self-determination in modern times can be defined as the right of peoples to determine their own political status and pursue their own economic, social and cultural policies.  Self-determination in its literal meaning or at a terminological level also implies the right [of a people] to express itself to organize in whatever way it wants. A people must be free to express their will without interference or threat of interference from a controlling authority. This includes alien domination, foreign occupation and colonial rule.

Although, the applicability of the principle of the self-determination to the specific case of Jammu and Kashmir has been explicitly recognized by the United Nations. It was upheld equally by India and Pakistan when the Kashmir dispute was brought before the Security Council. Since, on the establishment of India and Pakistan as sovereign states, Jammu and Kashmir was not part of the territory of either, the two countries entered into an agreement to allow its people to exercise their right of self-determination under impartial auspices and in conditions free from coercion from either side. The agreement is embodied in the resolutions of the United Nations Security Council, explicitly accepted by both Governments. It is binding on both Governments and no allegation of non-performance of any of its provisions by either side can render it inoperative.

It is apparent from the record of the Security Council that India articulated the principle, accepted the practical shape the Security Council gave to it and freely participated in negotiations regarding the modalities involved. However, when developments inside Jammu & Kashmir made her doubt her chances of winning the plebiscite, she changed her stand and pleaded that she was no longer bound by the agreement. Of course, she deployed ample arguments to justify the somersault. But even though the arguments were of a legal or quasi-legal nature, she rejected a reference to the World Court to pronounce on their merits. This is how the dispute became frozen with calamitous consequences for Kashmir most of all, with heavy cost for Pakistan and with none too happy results for India itself.

By all customary moral and legal yardsticks, 23 million Kashmiris from both sides of the Ceasefire Line (CFL) enjoy a right to self-determination. Kashmir’s legal history entitles it to self-determination from Indian domination every bit as much as Eritrea’s historical independence entitled it to self-determination from Ethiopian domination.

India’s gruesome human rights violations in Kashmir also militate in favor of self-determination every bit as much as Yugoslavia’s human rights violations and ethnic cleansing created a right to self-determination in Bosnia and Kosovo. Kashmir’s history of social and religious tranquility further bolsters its claim to self-determination every bit as much as East Timor’s history of domestic peace before Indonesia’s annexation in 1975 entitled it to self-determination in 1999.                                   

If law and morality are overwhelmingly on the side of Kashmiri self-determination, then why has that quest been thwarted for 72 years? The answer is self-evident: the military might of India. India is too militarily powerful, including a nuclear arsenal, and too economically mesmerizing to expect the United States, the United Nations, NATO, or the European Union to intervene. The United States is reluctant to exert moral suasion or pressure to prod India because it covets more India’s alluring economic markets and collaboration in fighting global terrorism.  Further, the size and wealth of the Indian lobby in the United States dwarfs the corresponding lobbies supporting Kashmir.  

The world powers need to understand that there is no way the dispute can be settled once and for all except in harmony with the people’s will, and there is no way the people’s will can be ascertained except through an impartial vote. Secondly, there are no insuperable obstacles to the setting up of a plebiscite administration in Kashmir under the aegis of the United Nations. The world organization has proved its ability, even in the most forbidding circumstances, to institute an electoral process under its supervision and control and with the help of a neutral peace‑keeping force. The striking example of this is Namibia, which was peacefully brought to independence after seven decades of occupation and control by South Africa; East Timor and Southern Sudan, which got independence only through the intervention of the United Nations. Thirdly, as Sir Owen Dixon, the United Nations Representative, envisaged seven decades ago, the plebiscite can be so regionalized that none of the different zones of the state will be forced to accept an outcome contrary to its wishes.

In conclusion, a sincere and serious effort towards a just settlement of the Kashmir dispute must squarely deal with the realities of the situation and fully respond to the people’s rights involved in it. Indeed, any process that ignores the wishes of the people of Kashmir and is designed to sidetrack the United Nations will not only prove to be an exercise in futility but can also cause incalculable human and political damage.

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International Law

UN anniversary’s gloomy takeaways

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On its 75th anniversary and amid the global COVID-19 pandemic, the United Nations has for the first time convened world leaders mainly in an online format to seek action and solutions for a world in crisis.

The UNO’s predecessor, the League of Nations, wrapped up its work with the outbreak of World War 2, but the further the start of the present United Nations slides back in history, the more skeptical assessments of its performance are being heard today. How come?

The United Nations Organization was created by the victorious nations shortly after the end of the Second World War, but the idea of ​​creating a new international organization tasked with maintaining global peace and security was actually floated by members of the anti-Hitler coalition even before the war was over. During their August 14, 1941 meeting at the British naval station Argentia (Newfoundland), US President Franklin Roosevelt and British Prime Minister Winston Churchill inked the Atlantic Charter, which defined the two countries’ goals in the war against Nazi Germany, and outlined the first sketches of the post-war world order. The Soviet Union joined the declaration on September 24 of that same year. On January 1, 1942, representatives of 26 Allied countries endorsed the Atlantic Charter and signed the United Nations Declaration. Welcomed as the idea of creating a new organization was by everyone, however, there still were numerous disagreements regarding its tasks, goals and powers.

At a conference held in Moscow on October 19-30, 1943, the foreign ministers of the USSR, the US and Great Britain (Vyacheslav Molotov, Cordell Hull and Anthony Eden), signed the Declaration of Four Nations on General Security (it was also signed by China’s ambassador to the USSR Fu Bingchang), where the parties pledged to fast-track the creation of an international organization to maintain peace and security. The final agreement on the creation of the United Nations Organization was reached in March 1945 during the Yalta Conference by the leaders of the three Allied Powers – Josef Stalin, Franklin Roosevelt and Winston Churchill.

It was established that the UN would be based on the principle of unanimity of the great powers – permanent members of the Security Council with a veto right. Harry Truman, who succeeded Franklin Roosevelt, who died in April 1945, was openly critical of the agreement, but during a conference in San Francisco, where Soviet and US representatives locked horns over a number of issues pertaining to the UN Charter, the Soviet position prevailed.  The sides eventually reached a compromise whereby the UN General Assembly could discuss any issues, but did not have the right to take decisions binding on the UN member states.

On June 26, 1945, representatives of 50 countries met in San Francisco to sign the UN Charter. On October 24, 1945, the Soviet Union became the 29th state to have submitted the instrument of ratification, thus securing the necessary number of votes for the Charter’s entry into force. Since 1948, October 24 has been marked as United Nations Day.

The status of the United Nations Organization, paid for by tens of millions of lives perished in World War II, went unquestioned for quite some time, ensuring for more than half a century peace in Europe and a relatively predictable situation globally. Over time, however, even the most durable world order is bound to be put to a test.

At the turn of the 1990s, the bipolar system of international relations and the Cold War were replaced by a new world order based on the political and economic predominance of the United States and its closest allies. By historical standards, however, this period proved pretty short-lived since the world is too complicated to unconditionally kowtow to the principles of the Washington Consensus. By the close of the 20th century and the start of the 21st, new centers of power and integration projects began to emerge, initiated by countries in Eurasia and Latin America.

Serious doubts about the reliability of the existing system of international security appeared already in 1999 with NATO’s enlargement to the east to incorporate Hungary, Poland and the Czech Republic – the first such process since the end of WW2. In that very same year, the forces of the North Atlantic Alliance, sidestepping the UN Security Council, launched bombing raids against Yugoslavia, thus throwing in question the entire system of post-war treaties. Since then, almost every US-initiated military operation in the world has been conducted illegitimately and classified by the UN Security Council as an act of aggression and condemned by both Russia and China, which insist that any use of force in international relations, be it political, economic or military, should come exclusively as a result of consensus of all members of the Security Council.

The veto right by a permanent member of the Security Council to block any decision, even if it is approved by all other members, remains the backbone of the entire system of international security. Everyone understands this, but not everyone is ready to come to terms with it.

The UN’s presence in the world after the end of the inter-bloc confrontation has significantly increased with its mandate transcending military aspects and now including humanitarian and social issues.

However, the world is facing the growing threat of numerous conflicts flaring up that can’t be resolved without a consensual decision by the key UN member states which, in turn, has proved to be extremely hard to achieve. It’s not just about the five permanent members of the UN Security Council, as even the content of international documents is being disputed now. Who would possibly object to the need to combat the activities of terrorist and extremist organizations? And still, practice shows that the term “terrorism” carries a different meaning for European countries and, for example, those in the Middle East. As a result, UN Security Council resolutions on the settlement of contemporary conflicts in this region are actually ignored. Civil wars in Libya and Syria, as well as the extremely difficult situation in Iraq, caused to a large extent by the interference of the United States and its allies, as well as by the activities of network extremists, have added to the decades-long Palestinian-Israeli conflict. Adding to this is the rising threat posed by drug and cyber terrorism.

With the situation being as it is, the United Nations is facing a growing wave of criticism. The organization has been criticized before – in 1993 the UN mission in Somalia fell though, and in 1994, the UN failed to prevent genocide in Rwanda, stop hostilities in Congo and the civil war in the Balkans, which led to an armed intervention by NATO. The actions by representatives of the UN and organizations it helped create in the Middle East often lack their declared impartiality.

While during the Cold War era decision-making mechanisms in the international arena were based on the decisions by the Yalta and Potsdam conferences of 1945, the 1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe and a raft of arms control treaties, after the period of confrontation ended, so did the period of transparent “rules of the game” in world politics. Moreover, many non-state actors have emerged and now wield serious financial and political influence. Nevertheless, the UN remains the only organization that prevents the existing structure of global security from falling apart in the extremely difficult circumstances of this day and age.

There have been growing demands to bring the UN and its Security Council in line with modern-day realities. During the 75 years of the organization’s existence, the number of its member states has increased from 50 to 193, as have the shortcomings of many of its agencies. Many criticize the UN’s peacekeeping operations as haphazard, extremely selective and prone to double standards. The organization has been repeatedly called out for being in a financial crisis. Many developing countries (states of the “global South”) are trying to limit the veto power enjoyed by the permanent members of the Security Council and are demanding more equitable geographical representation in the Council. Developed countries such as Germany, Japan, Brazil and India also seek the status of permanent members of the UN Security Council. They propose to expand the Council to 25 members, with two permanent seats reserved for Asia and Africa and one each for Latin America and Western Europe.

In 2017, US President Donald Trump came up with a plan to reform the UN, proposing, among other things, to optimize the organization’s expenses and get more return for every dollar invested in it. Well, by the efficiency of the UN’s work Trump apparently means decisions that would serve America’s best interests.

Washington’s tactic regarding the Joint Comprehensive Plan of Action (JCPOA) on the Iranian nuclear program is very indicative here. In 2015, Iran and the 5 + 1 group of states (the five permanent members of the UN Security Council – the United States, Russia, China, Britain and France, as well as Germany) signed the so-called Iran nuclear deal, according to which Tehran refused to develop nuclear weapons in exchange for a gradual lifting of international sanctions. However, in 2018, Washington pulled out of the accord and announced new sanctions against the Islamic Republic. On August 20, 2020, the United States sent a letter to the UN Security Council announcing the launch of the so-called sanctions snapback process whereby any signatory to the 2015 deal could re-impose sanctions against Iran if it found that Tehran was not fulfilling its obligations under the agreement. The idea was simple: it was enough to submit a request to the UN Security Council to launch the snapback mechanism to force the Security Council to raise the issue of continued implementation of the entire Iranian nuclear deal. The Americans would then use their veto power and the document would simply cease to exist. This didn’t happen though as all other permanent members of the Security Council ignored the US request. Therefore, following the necessary 30-day pause, on September 21, the US imposed unilateral sanctions against Tehran. A paradoxical situation ensued: de jure, no sanctions exist for most countries, but de facto, Washington feels free to punish anyone who dares to violate these “nonexistent” restrictions and continues to cooperate with Tehran pursuant to Security Council Resolution 2231.

The majority of the permanent members of the Security Council want to more or less keep in place the UN’s current decision-making mechanisms, which give them obvious privileges while simultaneously allowing them to solve the main task the UN was originally created for, i.e. the prevention of major wars between great powers. Besides, no comprehensive reform of the organization appears likely since there are no criteria all member countries would agree with. Therefore, despite all the critical barbs, the organization will continue in its classical form, at least for now. Meanwhile, the world finds itself in a state of complete uncertainty caught between the remaining fragments of a failed attempt to build a unipolar system and institutions inherited from the second half of the 20th century.

Russia’s position on the UN reform remains fairly balanced. Moscow believes that changes should not affect two key provisions – the approval of the proposed plan by the overwhelming majority of the participating countries, and the preservation of the Security Council’s prerogatives, including the right of veto.

Russia stands for the development of the UN’s peacekeeping potential, which it believes is not fully in line with the tasks currently facing the organization, and for wider cross-border social and humanitarian cooperation necessitated by the COVID-19 pandemic. The way out of the socio-economic crisis caused by this epidemic will be long and extremely difficult, therefore it is imperative to stop dividing countries into “us” and “them,” and start developing all the necessary mechanisms of cooperation. Russia’s Foreign Minister Sergei Lavrov outlined these priorities in his speech at the 75th anniversary session of the UN General Assembly on behalf of the CSTO member states.

“The fate of the United Nations is in the hands of its member states. Just like in 1945, we need to cast aside our differences and come together for the sake of delivering on common objectives, based on equitable dialogue and mutual respect for one another’s interests. The UN offers all the necessary conditions to this effect,” Lavrov emphasized.

From our partner International Affairs

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