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Reserve judgment: Arbitrating energy disputes in Africa

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As African states seek to use national laws to protect their natural resources and increase revenue from their development, Fieldfisher dispute resolution partner, Simon Sloane, considers the difficulties facing energy companies seeking to protect their investments while respecting the transformational needs of host states.

Africa’s capacity to benefit equitably from its own natural resources continues to be one of the main challenges facing many of its most energy-abundant jurisdictions.

While blaming this state of affairs on the old “resource curse” myth is simplistic and unhelpful, it remains the case that nations rich in resources tend to be poorer and less developed than those which are not, with many of the benefits of their exploitation going offshore.

Despite the clear moral case for African countries to profit more from their energy and mineral reserves, legally the picture is more complicated.

Much of the cost and risk of extracting these resources tends to be shouldered by foreign investors, who expect to be compensated for their outlays and assume that the terms on which they invested will be protected by local and international laws.

Consequently, any new domestic legislation guaranteeing host countries a “fair” share of the revenues from internationally funded projects is often treated as breaching protections given to foreign investors in bilateral investment treaties (BITs).

There have been numerous incidents of foreign companies successfully bringing arbitrations against African states that have tried to amend investment terms retrospectively, with investors relying on safeguards such as fair and equitable treatment (FET) and non-expropriation rights provided in BITs.

This has led to growing scepticism among African governments of (particularly first and second generation) BITs, as these treaties are often perceived as looking after the interests of foreign investors, to the detriment of states’ needs to transform their economies.

Affirmative action

A handful of African countries, including South Africa and Tanzania, have recently cancelled a number of their BITs – a situation that has created tension between the desire to preserve domestic assets for the national benefit and the need to attract foreign investment to fuel economic growth.

Domestic legislation designed to promote equitable ownership include South Africa’s black economic empowerment initiatives, which compel 26% of shares in mining assets to be distributed to disadvantaged local people.

In Tanzania, new laws including the Natural Wealth and Resources Contracts (Review and Re-negotiation of Unconscionable Terms) Act, 2017 and the Natural Wealth and Resources (Permanent Sovereignty) Act, give the government power to renegotiate contracts with investors on terms more favourable to the state.

Although international arbitration is generally a last resort for resources companies when disputes arise, lately there has been a noticeable increase in requests for arbitration in circumstances where African states have sought to implement alternative local laws.

BIT terms and Western-centric legal principles rarely align with traditional African customary laws and there is a growing unwillingness in many African states to accept foreign rulings over key national assets, which can make the enforcement of an international arbitration award against a state politically challenging.

Since relatively few African court decisions are published, it is hard to tell statistically where many countries are in terms of compliance with international arbitration awards, and how many are resisting enforcement.

There have been some very public rejections of international arbitrators’ decisions.

Zimbabwe, for example, has resisted recent efforts to enforce awards made against it in US courts.

Nigerian courts have also refused the local enforcement of a multi-billion dollar London Court of International Arbitration (LCIA)commercial arbitration award against a state-owned entity in favour of foreign investors, notwithstanding that the English courts have upheld the validity of the award (see P&ID Ltd v Federal State of Nigeria).

Yet even in cases where the authority of international arbitrators is accepted, the variety and nature of local laws can cause problems when it comes to implementing awards in African states.

Parallel proceedings

Growing distrust of the international arbitration system among African governments is a considerable problem for foreign investors, especially in the highly litigious energy sector, as there is currently no trusted alternative for resolving disputes.

Historically, arbitration has not been high on the agenda for most African states and relatively few African judges have significant experience of international arbitration.

Efforts are being made to redress this through legal education and there have been moves to establish regional arbitration centres throughout Africa that have the confidence of both states and investors, although these are yet to gain significant traction.

In the meantime, there continue to be serious problems in resolving energy project disputes caused by parallel proceedings, where one party will ignore an arbitration clause in a contract and ask for the matter to be addressed in a local court.

In these situations, partiesend up straddling one or more proceedings on the same issues, with different tribunals and courts regularly reaching different decisions and with the added hurdle of a party facing competing anti-suit or anti-arbitration injunctions.

Such circumstances are common where at least one partner is foreign and relies on an arbitration clause in a contract or its public international law rights under a BIT, while local parties are more naturally inclined to seek decisions from local judges.

Often, the impasse is caused by local judges who are suspicious of the international arbitration process and are not willing to abdicate their powers to a foreign tribunal .

Pre-empting problems

In many cases, the need for arbitration can be avoided by careful and far-sighted approaches to contract negotiation.

Simply including an arbitration clause in a contract will not automatically prevent the parties ending up in messy disputes being contested simultaneously in domestic and international courts.

Energy projects especially will usually involve a complicated series of contracts between international energy companies and one or more domestic counterparts, including government bodies, local investors and contractors.

If a domestic party decides to ignore an arbitration clause and asks a local court to intervene, the foreign party then has to choose whether to seek an injunction and refer the dispute to arbitration, or submit to the local court’s jurisdiction.

In these situations, the international partner is likely to have difficulty locally enforcing any award they obtain, if they proceed with the arbitration.

Alternatively, the international party can opt to engage in the local court process which can expose them to the vagaries of an unfamiliar legal system.

Where there is a suite of contracts containing different arbitration clauses, this leaves the parties open to arguments about which arbitration clause governs which dispute and the possibility of multiple proceedings.

Habitually, there is a lack of attention given by lawyers drafting contracts to what are sometimes mandatory laws to protect natural resources.

Rules obliging infrastructure developers to use local contractors on large projects are also frequently ignored.

This failure to respect local laws can lead to litigation in local courts, especially as communities become more empowered to challenge this practice, over issues which should have been addressed at the drafting stage.

While not wholly avoidable, the risk of becoming embroiled in paralysing disagreements can be minimised by careful drafting and fully thinking through how proceedings will work in particular African jurisdictions.

Intra-African arbitration centres

One of the solutions being implemented to improve the perception of international arbitration in African disputes is the establishment of local arbitration centres.

In 2016 alone, there were more than 70 international arbitration centres operating across Africa,, with varying degrees of credibility, and more have sprung up since.

The Cairo Regional Centre for International Commercial Arbitration, established in 1979, has been notably successful in attracting Arab and north-Saharan arbitrations.

In Nigeria, the Lagos Court of Arbitration is growing in stature, as are the Kigali International Arbitration Centre (KIAC) in Rwanda and the Ghana Arbitration Centre.

The Casablanca International Mediation and Arbitration Centre (CIMAC) in Morocco and the Mauritius International Arbitration Centre (MIAC), which was previously an offshoot of the LCIA, are also actively seeking to play active roles in resolving African disputes.

China’s approach to arbitrating in Africa is also worth paying attention to. The China-Africa Joint Arbitration Centre (CJAC) in Shanghai was specifically set up to deal with infrastructure project disputes, and China is now looking to set up centres with broader mandates in East and West Africa.

The goal of all of these African centres is to regionalise arbitration, so that cases involving precious national assets are dealt with in Africa by African lawyers and arbitrators, with the buy-in of African governments and international investors.

However, until local courts are equipped to play a supportive role in arbitration, it may be hard for these centres to command confidence, especially when there are so many centres competing to hear arbitrations.

Transparency within the local court system also needs to improve, as where there is little or no access to court judgments, the worst assumptions are going to prevail.

International investors need to feel they can trust the integrity of local courts before they can be comfortable with their handling of cases.

The Paris-headquartered International Court of Arbitration (ICA) is pushing to improve the transparency of enforcement, on the grounds that it is important for tribunals and courts to know what other courts are doing, and for the rest of the world to see that key treaties are not being overturned and set aside.

The Organization for the Harmonization of Business Law in Africa (OHADA) is similarly seeking to facilitate a pro-arbitration stance in West Africa.

It is worth noting that suggestions around using institutionally appointed arbitrators, who have the advantage of proven expertise in the area they are arbitrating on, have generally received a cool reception by courts, states and investors.

Stabilisation clauses

The use of stabilisation clauses in contracts as a means for foreign investors to mitigate or manage political risks associated with their project is coming under scrutiny in Africa.

The World Bank and other multi-lateral development organisations favour the deployment of clauses that allow an investor to sue a state if the terms on which they invested change, as a way of increasing investment in Africa and developing economies in general.

But it is becoming increasingly evident that such clauses bind African governments and prevent them from amending local labour and environmental laws or their fiscal regimes, even if such reforms are deemed necessary to transform their societies and enhance domestic economies.

Although many African countries recognise that including stabilisation clauses in a BIT is likely to lead to expensive disputes that state balance sheets can ill afford, the need to attract foreign investment means that most governments are still willing to take the risk.

This is an area that multi-lateral organisations need to review, as it is clear that the current situation does not adequately serve the transformational needs of many African states.

New model treaties

Simultaneously with the growth of local arbitration centres, a raft of regional investment and co-operation agreements have sprung up to foster intra-African state and private investment from home-grown and international sources.

The majority of these agreements contain carve-outs expressly to enable African states to address their transformational needs, including exemptions for disenfranchised communities and the need to protect natural resources, without the fear of incurring liability to foreign investors.

The African Continental Free Trade Agreement (AfCFTA), signed in Kigali in March 2018, is intended to provide a platform for intra-African investment between 27 African Union member states, both at state level and for private investors.

It is also hoped that the AfCFTA will go some way towards dealing with the perception that foreign investors have advantages over local partners under traditional BITs, and with some of the problems of enforcing courts’ decisions on disputes.

The New York Convention

One major benefit of international arbitration is the ease of enforcement in foreign jurisdictions which are signatories to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”).

In sub-Saharan Africa, a region which comprises 46 of Africa’s 54 countries, many but not all jurisdictions have ratified the New York Convention.

The challenge now will be to ensure that the convention is properly implemented and respected by all signatories.

African governments are also closely following developments in Europe around the Investment Court System as an alternative to international arbitration, for resolving investor disputes in EU member states.

Tackling corruption

Non-governmental organisation Transparency International singles out the global oil and gas industry as one of the business sectors at the greatest risk of corruption, with Africa being a particular hot spot.

While there has been ample evidence of corrupt practices in some jurisdictions, observers should be cautious generalising about Africa, as many African countries are highly ranked as places to do business cleanly and legally.

Corruption is one of the issues at the heart of many governments’ dissatisfaction with the international arbitration system, as it smacks of injustice that an investor may be involved in illegal activity, by coercion or by choice, yet still win significant arbitration awards.

There have been a few advances in BITs and model laws that indicate international law is starting to get to grips with the issue.

The Dutch Model BIT published earlier this year allows tribunals to take into account whether there has been corruption when making an award – a development that has been largely welcomed and is likely to be replicated in other BITs around the world.

The Nigeria-Morocco BIT (the Reciprocal Investment Promotion and Investment Agreement) signed in late 2016, which contains a comprehensive anti-corruption provision, is also seen as one of the most progressive new formats of BIT.

The future of African energy disputes

Anyone considering making investments in Africa needs to be aware that there are a number of regional treaties to be complied with in order to benefit from investment protections.

There continue to be unresolved questions around enforcement mechanisms and what protections are enforceable through arbitration, especially as countries pull out of BITs.

For users or would-be users of the arbitration system, there are some difficult choices to be made for those who find themselves in the midst of several parallel proceedings.

While disputants may be convinced that they are legally right that arbitration is the way to resolve an issue, parties need to be very certain that there is some kind of enforcement option available to justify the time and expense involved.

Otherwise, disputes can turn into difficult procedural battles between arbitrators and local court proceedings, leading to spiralling costs and project delays, ultimately forcing parties to abandon the case.

Simon Sloane is a dispute resolution partner at European law firm, Fieldfisher. He is a leading expert in international arbitration and ADR with over 25 years' experience of advising construction, energy and insurance clients. For more information on our international arbitration expertise, please visit the relevant pages of the Fieldfisher website. https://www.fieldfisher.com/

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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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