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International Law

United Nations Security Council’s failure to redress the Rohingya refugee crisis

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Authors: Tanaya Thakur and Amit Kumar*

The issue of violence against Rohingya muslims in the Rakhine state of Myanmar has been a cause for global as well as regional concern for the past many years. Rohingya Muslims have been allegedly facing violence and discriminatory practice in the Buddhist dominated state since 1970s; on the grounds of ethnicity, language, and religion. The matter has however gained global prominence only in 2015; when mass exodus of the Rohingya muslim population happened from Myanmar to nearby South-Asian states. The migration was a result of clash between Arakan Rohingya Salvation Army (ARSA) and the Myanmar army. Post the clash, Myanmar military launched a clearance campaign against them which resulted in burning down of several Rohingya villages and forcing around seven hundred thousand to flee and settle in other states. The Rohingya crisis has been dubbed by the international community and academic commentators as border lining the heinous offence of genocide.  The matter has been debated in the United Nations, regional forums, within domestic jurisdictions of south Asian states, and also in international courts, namely the International Court of Justice (ICJ) and the International Criminal Court (ICC).

On 23rd January 2020, the ICJ pronounced certain provisional measures to be adopted with respect to the Rohingya refugees; holding that Myanmar should take all possible measures to prevent the commission of acts falling within the scope of the definition of genocide (Article II of the Genocide Convention); ensure that its military and any organizations or persons subject to its control, direction or influence do not commit acts of genocide and any ancillary offence, take effective measures to preserve any evidence related to allegations of genocidal acts; and submit a report to the Court on all measures taken to give effect to the Order within four months and thereafter every six months until a final decision on the case is rendered. The order was then communicated to the Security Council by the Secretary General; who also expressed hope that Myanmar would ensure compliance of the ICJ’s order.

Due to the difference in their structure from domestic judicial bodies, international courts such as ICJ do not have the means to ensure the enforcement of their judgments. For this purpose they have to rely on state machineries themselves or on organizations such as the United Nations (Articles 94, 98, 99 of the UN Charter). In most cases the Security Council (UNSC) is vested with the responsibility to enforce ICJ judgments, even though the General Assembly has the power to work towards enforcement. Pursuant to this, a meeting of the UNSC members was called for to work out a method to ensure compliance of the ICJ provisional measures. The meeting was however vetoed by China and Russia and hence a conclusive plan of action could not be achieved.

China and Russia have time and again expressed that it is a bilateral issue between Myanmar and Bangladesh and should not be discussed at international forums. This view was also previously expressed at a meeting between UN and ASEAN to discuss provisional measures’ compliance and role of UN-ASEAN co-operation for the same. In another instance, China and Russia along with Equatorial Guinea voiced opposition when Marzuki Darusman, Chairperson of the United Nations Independent International Fact-Finding Mission on Myanmar was supposed to address the council as to its finding on the refugee crisis. They stated that the mission’s mandate was not to brief the Security Council. It was also asserted that the UNSC’s duty was limited to protect international peace and security it should not get involved in country-specific human rights violations. It was the UN General Assembly which then on the basis of findings of the same commission adopted a resolution that condemned the violence and discrimination towards Rohingyas and called on Myanmar’s government to combat provocation of hatred against the Rohingya and other minorities in the states of Rakhine, Kachin, and Shan.

This is not the first time that the Security Council is failing to take any action in a crisis situation due to usage of veto power. In the case of Rohingya refugee crisis, the veto has been used by China and Russia; in other matters of UNSC interest it has been some other nation to use the power. The veto power vested with the Security Council to ensure maintenance of world peace through co-operation and coordination has in fact played a counter-effective role with overuse and misuse to achieve the five permanent nations’ own agendas.

The Rohingya crisis has been acknowledged as an international concern by majority states. The independent fact-finding mission by United Nations in its report presented evidence of gross human rights violations driven by the Myanmar military against the Rohingya population. Evidence of systematic cleansing through killings, violence, rampage, sexual assault and rapes were discovered by the mission and presented in its detailed report. The mission confirmed ‘genocidal intent’ on part of higher official’s in the Myanmar army and recommended prosecution. The government of Myanmar has however continued to deny any form of genocide and has maintained that at most it is a war crime that would be dealt domestically by the state. Apart from denying any form of systematic cleansing, the Myanmar government has also, with its passive approach in the issue, failed to ensure safe return of Rohingyas from other states. Most of the Rohingya population has been rendered stateless and is reduced to a situation of abject poverty. They lack basic amenities like food, water and education and have been refused refugee status in states like India, Thailand and Indonesia where they are considered illegal immigrants. When evidence of state supported violations of human rights are available in Myanmar; gruesome enough to create heavy displacement in the region – it can no longer be said to be internal matter of the state.

The United Nations was established with the primary purpose of maintaining world peace and security (Preamble and Article 1(1)). It has the obligation to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace. The Preamble to the Charter also mentions that the Charter reaffirms faith in fundamental human rights, and in the dignity and worth of the human person. The UN Security Council has been conferred with the primary responsibility for the maintenance of international peace and security in accordance with the principles and purposes of the UN Charter. Thus, an issue of the magnitude of Rohingya crisis falls into the ambit of the United Nation’s goals. The UNSC taking action on the matter in no way oversteps boundaries and in fact would be a step forward in realizing its objectives.

Considering the facts, question arises as to why permanent members such as China and Russia have been using their veto powers to stop the UNSC from discussing the issue. There are a number of reasons that explain China’s position. First, China has several multi-million dollars economic projects lined up in Myanmar as part of the China-Myanmar Economic Corridor (CMEC) under China’s Belt and Road Initiative. Myanmar has already been cautious about China’s investment plans and has treaded with more caution than any other developing nation regarding the project. If China speaks up against the Chinese government in an international forum or becomes party to any debate on the matter – it would lose Myanmar’s faith which has taken years to develop. Second, with USA receding from the international economic market; China has found an opportunity to position itself as the new global power-center.

Establishing itself as the regional power-center is a stepping stone in achieving that objective. Securing Myanmar’s trust by using it powers in the UNSC could be one way to protect this objective. Third, China has maintained that its general international policy is one of non-intervention and non-alignment. It has stated that it shall work in the international forums only on issues of extremism, terrorism and separatism. It also maintains that ‘westernized’ ideas of human rights should not be imposed on states and they should be allowed to develop their own rights. It further argues in favour of internal safety and security. Intervening in the Rohingya crisis would go counter to China’s international relation policies (for further understanding reference can be made to Shanghai Cooperation Organization). This is also one reason why it speaks in favour of an internal arrangement in Myanmar on the Rohingya issue. Fourth, discussion on the Rohingya crisis in the UNSC could act as a catalyst in opening the floodgates to similar problems of violence been discussed. This could potentially lead to trouble for China which itself is accused of behaving similar to Myanmar in the case of Uyghur muslims. Last, Russia has been a close ally to China for some time and has similar international policies; which would explain its veto in the Rohingya case. Russia also has a history of alleged genocidal acts and persecution against its muslim population.

In the Rohingya issue there were several steps that the Security Council could have otherwise taken to ensure that the situation was brought under control and the human rights violations were stopped. It was not necessary that the persecutors of Rohingya’s were prosecuted internationally. The UNSC could have over the period pressurized the government into conducting a fairer domestic trial of those involved. Rohingya muslim’s safe return to Myanmar and a domestic settlement between the parties could have been ensured through a threat of sanction from the UNSC. Had personal interests been kept aside by UNSC members, the UN Charter could have been used to find means of settlement between the Rohingya muslims, Myanmar and Bangladesh – which has borne the maximum burnt of the crisis. Though, individual efforts have been taken by certain countries, like the USA which has imposed sanctions upon certain military officials from Myanmar for the extrajudicial killings of Rohingya Muslims – barring them from entry to the United States; a collective action from the UNSC has been missing.

The Myanmar army which is being accused of perpetrating the alleged genocide of Rohingya muslims, is vastly funded from the revenues generated by two companies owned by it, apart from funding from the state. These military owned firms were found to be a “risk contributing to, or being linked to, violations of international human rights and humanitarian law” by the UN fact finding mission. The UNSC could have imposed an embargo upon those companies which have trade relations with military owned companies in Myanmar.

Apart from these options, the council could have either set up a criminal tribunal or referred the matter to the International Criminal Court (ICC). The council has previously resorted to the mechanism of setting up tribunals to try and punish those individuals who were accused of committing grave breaches of Geneva Convention, genocide or crimes against humanity in case of conflict in Rwanda and Yugoslavia. In case of South Sudan (Darfur), the UNSC had referred the situation to ICC. The Rome Statute gives power to the UNSC to refer any situation to the ICC for investigation of war crimes, genocide, crimes against humanity and crimes of aggression. The UN mission had identified involvement of military and police officials in the commission of these crimes in Myanmar. Even though the matter reached ICC; it came as a reference not from the Security Council but from Bangladesh. The Court relied on an expansive interpretation of the Statute to establish its jurisdiction on the issue, as Myanmar was not a party to it. Had a UNSC reference been made, it would have been easier for the Court to answer the question of jurisdiction.

It goes on to demonstrate how the Security Council has been unsuccessful in performing its responsibilities because two of the permanent members used their veto power to further their interests. Veto power has been used by the permanent five as a tool for manipulation, rather than as the shield it was meant to be. If the Security Council is to work towards its goal, the veto power needs to be re-imagined. With the sword of veto hanging over, important decisions which require the Security Council’s intervention will fail to get due attention. However, due appreciation should here be meted out to other international organs – the UNGA and ICC, which stepped up when the UNSC failed and worked towards restoring faith in international law.

*Authors are Research Scholars at, IIT Kharagpur (RGSOIPL). They have completed their masters in international law from South Asian University, New Delhi.

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International Law

COVID-19: UN Security Council should urgently take a Lead

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Authors: Tan Sri Hasmy Agam and Prof. Anis H. Bajrektarevic

The COVID-19 situation is very worrying, indeed, alarming matter, not just as a global health and biosafety issue, but potentially as a global security challenge, too.

While the pandemic is being dealt with by the World Health Organisation (WHO), along with other relevant United Nation Specialised Agencies (UN SA), the situation is deteriorating rapidly and could easily get out of control. This of course, if it is not effectively contained. In such a (more and more likely) scenario, it would be engulfing the entire world, virtually akin to as the Third world war, though initially of a different kind.

We are amazed as to why the Security Council has not stepped in. It should have done so as to address the Covid-19 and surrounding scenery in the way it clearly deserves to be dealt with, given its devastating impact on the entire international community on almost every dimension, including international peace and security, which indisputably falls under its mandate under the UN Charter.

As the Council has often dealt with issues which are sometimes not ostensibly related to international or regional security, we are puzzled, indeed alarmed, as to why it has chosen not to come to grips with the pandemic as a matter of the utmost urgency.

If the members of the Council, for their own internal reasons, have not felt compelled to do so, shouldn’t the other members of the world body, individually or collectively as international or regional groupings, such as the European Union (EU), the Non-Aligned Movement (NAM) – G-77,African Union (AU), or ASEAN, take the much-desired initiative to call on the Security Council to imperatively address this global pandemic, even as the WHO and other concerned UN agencies, much to their credit, are dealing with the issue from their own (narrow) perspectives – and yet rather limited mandate and resources.

In this regard, especially the EU, would be well-positioned to exert the much-need pressure on the UNSC, given the devastation that the Virus has wreaked on a number of its members, notably Italy and Spain, among others.

Such an urgent Meeting of the UN Security Council at this point in time would be greatly applauded by the entire international community as it would accord the world body the leadership role that its members expect it to play.

Gens una sumus. Concordia patria firmat

In this dire situation, the big powers should put aside their ideological and policy differences, or power play, and focus instead on galvanizing concerted international actions of ensuring the safety and wellbeing of the entire human race.

By decisively and urgently acting, the UN Secretary-General and the UN SC would be sending a bold and clear yet tranquilising signal to the entire humanity. More importantly, such a unison voice would be also welcomed and well understood as a referential (not to say a norm setting) note by other crucial agencies, such as the UN High Commissioner for Human Rights (UNHCHR), International Labour Organisation (ILO), International Civil Aviation Organisation (ICAO), World Tourism Organisation (WTO), as well as by the Red Cross (IFRC), Bretton Woods institutions, Organisation of  Economic Cooperation and Development (OECD), Federation of Trade Unions, including other specialised or non-UN FORAs, most notably developmental entities such as the Inter-American Development Bank (IADB), Islamic Development Bank (IsDB), Asia Development Bank (ADB), Africa Development Bank (AfDB), etc.

In the following period – while witnessing indeed a true historical conjuncture, we need a global observance and protection of human rights, of jobs, for the benefit of economy and overall security. Recovery – which from now on require a formidable biosafety, too – will be impossible without social consensus. Clearly, it will be unsustainable if on expenses of labour or done through erosion of basic human rights – embedded in the UN Charter and accepted as essential to the very success of SDGs (Sustainable Development Goals).

Indeed, countries are not just economies, but most of all societies.

(The truth is plain to see: Planet has stopped, although the Capital remains intact. We came to a global halt because the Labour has been sent home. Hence, the recovery comes with labour. Historically, labour has never betrayed, while capital has failed us many times. By the same token, human rights never betrayed the state and its social cohesion, but the states – and much glorified markets – far too many times in history have failed humans. Therefore, there is no true exit from the crisis without strengthening the labour and human rights.)

For a grave planetary problem, our rapidly articulated global accord is badly needed. Therefore, multilateralism – as the most effective planetary tool at our disposal – is not our policy choice. It is the only way for human race to (socio-economically and politically) survive.

Covid-19 is a challenge that comes from the world of biology. Yet, biology and international relations share one basic rule: Comply or die. To remind us; it is not the big that eat the small, rather it is a fast which eats the slow.

It is night time to switch off the autopilot. Leadership and vision now!!

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World Governments Need Cooperation of Every Section of Society to Defeat COVID-19

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COVID-19 has wrapped the whole world in its trap because of multiple reasons in which irresponsible behaviour at the hands of states remains at the top. There were some nations such as Italy and America which were not taking the threat of coronavirus serious resultantly both the countries are now the most affected nations of the world. Even at the extent that the president of America Donald Trump was showing passive behaviour concerning the outbreak of devastating virus resultantly the US has surpassed China and reached the top by highest patients in the world which have crossed two lacs including almost five thousand deaths. In this regard, President Trump has signed the $2 trillion Coronavirus relief bill. Besides, other nations such as Italy, Spain, China, Germany, France, and Iran come respectively after the US about the patients of COVID-19. As for as Pakistan is concerned, Prime Minister Imran Khan also urged for the international as well as national cooperation to control and eliminate the threat of COVID-19. While people in Pakistan are not still taking it seriously or fully cooperating with government via looking over their immature and unserious behaviour concerning the restrictions imposed by the government through violating them. In this regard, the government has sealed various shops and other public places that were open even after lockdown. Therefore the government has taken serious steps through lodging FIR against them. Besides, various madrassas/masjids were also offering Friday congregation prayers via side-lining the guidelines given by the government therefore many people were arrested and put behind the bars by security forces of the country. While looking over the staggering and worsening condition of Pakistan which shows a fast increase in the patients of coronavirus government requires the seriousness and cooperation of people to control over fatal disease otherwise it will wipe out most of the population of the country.

Consequently, it is not only the responsibility of people within states to cooperate with the government to defeat first this global pandemic disease but it is also high time for states to cooperate even having multiple differences over numerous issues. In this regard, for defeating Coronavirus states require global cooperation via setting their enmities and differences aside for the common good. Besides, China continues international cooperation to beat COVID-19. Beijing is determined to cooperate and help other nations, therefore, it has sent aid towards 18 countries over the past month in which it has sent its team as well as tons of medical supply to various countries such as Italy, Cambodia, Pakistan, and United Kingdom. Along with this Chinese government said that those countries which are not provided aid by it were helping them through an online website. Via looking over the commitment and relentless struggle of the Chinese government as well as people particularly medical staff, they have become successful in controlling the spread of COVID-19. In the same manner, China also emphasized the global stakeholders that global cooperation is the only way to beat the coronavirus. The governments need acts with speed, scale and clear-minded determination to conquer the fast-spreading virus. Because “viruses do not respect border: neither do they distinguish between races or nations, therefore, responsible governments worldwide should stand firmly against hatred and racism and join hands to promote disease prevention and clinical treatment as well as vaccine development”.

World Health Organisation (WHO) Chief in his recent media briefing said that “This is not just a threat for individual people or individual countries. We are all in this together, and we can only save lives together”. Though preventive measures suggested by the countries which have minimized and controlled the fast spread of COVID-19 such as China, South Korea, and Sudan are social distancing, contact tracing, widespread testing, and early preparation. In the DW documentary, Dr. Alexander Edward, an Immunologist, emphasized on the usage of face masks, he also entertained that the world is running out of face mask because of its massive usage. Besides, Nature is a weekly international journal that published an article on March 9 in which emphasized over three things to eliminate coronavirus namely follow WHO advice, end secrecy in decision-making and cooperate globally which is the only way to defeat one of the worst infectious-diseases spread throughout the world. COVID-19 has left severe effects on the social, political, economic, and financial structures of the world. So, it is very difficult only for the governments of states to control and defeat this pandemic virus. In this regard, governments need the seriousness of behaviour as well as the cooperation of each section of society may it be doctor, social workers, government and private employs, common people, armed forces, businessmen, farmers along with each person who can contribute in any way to help the government to defeat the Coronavirus. This is the easiest and fast way to fight against coronavirus otherwise whole nations including governments are going to bear the brunt of this one of the most dangerous viruses of the 21st Century.

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International Law

Satya N. Nandan: End of an era for Law of the Sea

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The passing away of Amb. Satya N. Nandan of Fijion February 25, 2020 comes as a decisive loss to law of the sea as both a field of academic inquiry and a branch of applied public international law. As a crusader for a global rules based order for the world’s oceans, there are few who have contributed to the practical development and evolution of this field as the iconic Fijian lawyer-diplomat who would hold top positions in the United Nations and man the International Seabed Authority for the better part of its existence. His seminal contribution to Law of the Sea marks him out as a world-renowned practioner in a field that was marked by Westphalian struggles to establish control over the world oceans and the vast resources that lie beneath in the years leading to the adoption of United Nations Convention on the Law of the Sea, 1982 (UNCLOS). His death marks the end of an era for the discipline that continues to evolve based on the provisions of UNCLOS and the untiring efforts of States to strive for a world order based on equity and justice.

Born in 1936 in what was then known as the British Crown Colony of Fiji as the youngest of ten children to Shiu Nandan and Raj Kaur, Satya Nandan after completing his early education in his home country moved to New Zealand to complete his high school education. Pursuant to a law degree from the University of London in 1965, Nandan became a barrister at Lincoln’s Inn before returning to Fiji to start private practice. The newly independent nation would seek his assistance in establishing the country’s mission to the United Nations in 1970 eventually leading to his absorption as a career diplomat in Fiji. From here on Satya Nandan would be the moral and intellectual voice of the Pacific Island States seeking to assert their legitimate claims on ocean resources and championing the codification of what was then regarded as one of the last unregulated frontiers of the global commons. This association with law of the sea and ocean affairs would become a lifetime preoccupation for the rising young lawyer-diplomat.

Amb. Nandan’s most remarkable contribution to law of the sea would be his work as the Rapporteur of the Second Committee of the Conference that dealt with the major issues of law of the sea. The inability of the First and Second Geneva Conventions to iron out contentious issues failed to result in a global ocean convention acceptable to all States. The mistakes where sought to be corrected by the time the Third Conference on the Law of the Sea convened in New York in 1973. The United Nations Convention on the Law of the Sea, 1982 was the result of this Conference and has been the major treaty body regulating the use of oceans for the international community since its coming into force on November 16, 1994. Amb. Satya Nandan is widely recognized as the principal architect of this exercise who ironed out differences existing between various countries on diverse contentious issues. In the process, the Pacific States and Asian-African States were able to secure maritime jurisdictional claims of 200 NM from their baselines through the creation of Exclusive Economic Zones (EEZs), a unique output of the Convention first articulated in the Colombo Session of the Asian African Legal Consultative Organization (AALCO) in 1971 by Kenya. In addition, Amb. Nandan negotiated the rights for archipelagic States and the passage through straits for international navigation. In all cases, his determination to safeguard the interest of Pacific States and by doing so the interests of the broader community of Asian-African States stood out with conviction that continues to find resonance in global treaty negotiations till this date.

The provisions pertaining to deep-sea bed mining continued to remain contentious even after the adoption of the 1982 Law of the Sea Convention. This lead to the delay in the coming into force of the Convention. Urged by the then Secretary-General of the United Nations, Javier Perez de Cueller, Amb. Nandan joined the Organization as the Under Secretary- General for Ocean Affairs and Law of the Sea and the Special Representative of the Secretary-General for Law of the Sea. Most of the concerns pertaining to the issue were resolved through the intervention of Amb. Nandan as Chairman of the ‘Boat Paper Group’ resulting in the 1994 Implementing Agreement on Part XI, which created the International Seabed Authority to regulate the conservation and use of non-living resources on the deep-sea bed in areas beyond national jurisdiction.

Elected as the Secretary-General of the International Seabed Authority in 1996, Amb. Nandan in his three-term tenure that lasted till December 2008 was instrumental in moulding the ISA from its inception as an international organization with a specific mandate including establishing its main organs- the Assembly, Council, Legal and Technical Commission and the Finance Committee. It was during his tenure that the Regulations on Prospecting and Exploration of Polymetallic Nodules in the Area also known as the ‘Nodules Regulations’ were promulgated that would regulate the actual conduct of deep-sea mining in the ‘Area’ .  The establishment of an Endowment Fund in 2006 by the Authority for the advancement for marine scientific research (MSR) activities was also a significant feature of the work of the Authority and was widely welcomed as advancing the mandate of UNCLOS, 1982. Incorporating the ‘Precautionary Approach’ to the work of the Authority was a legacy of Amb. Nandan, which was validated by the Seabed Disputes Chamber in February 2011 in an advisory opinion that mandated the application of this principle as originally laid down in the 1992 Rio Declaration.

Amb. Nandan’s role in creating a global legal framework for fishery conservation was yet another shining aspect of his legacy. As Chairman of the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, the global community would witness theadoption of the 1995 United Nations Fish Stocks Agreement under his leadership and the subsequent setting up of the Western and Central Pacific Fisheries Commission. His lifelong commitment to sustainable use of marine living resources continues to inspire sustainability debates in the sector and remains highly valuable in the context of ‘blue economy’ debates.

The Virginia Commentary, which remains the most significant and reliable elucidation on the law of the seawas spearheaded by Amb. Nandan. It gives a masterly account of the treaty negotiation process leading to the adoption of the convention and forms a crucial corpus of the Law of the Sea. While it involved the effort of numerous individuals, Nandan is credited with providing intellectual leadership of the project as the series general editor of the work along with Shabtai Rosenne. The seven-volume book, which took 26 years to prepare, remains an indispensable account for any serious scholar or practioner of the subject.

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