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International Law

Responsibility to Protect and Political Will

Maathumai Paranthaman

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The very reason why responsibility to protect fails drastically in many circumstances is that the international community is plagued by the complete lack of political will. Alex Bellamy finds that “the international community’s actual record of preventing and halting the mass killing of civilians is staggeringly poor”.When the practical battle of sovereignty versus humanitarian intervention started the former UNSG Kofi Annan proposed a “forged unity” that resulted the norm of humanitarian intervention. (Bellamy, June 2006 )

The indeterminacy (sovereignty v intervention) somehow makes the responsibility to protect to fail in both practical and institutional terms. However, there is still hope that with the “compliance pull” the R2P can be newly emerged as it proved to be better solution than humanitarian intervention. It is worthy to note what Eric Heinze speaks on humanitarian intervention and he says “the transboundary use of military force for the purpose of protecting people whose government is egregiously abusing them, either directly, or by aiding and permitting extreme mistreatment”. (Heinze, 1 January 2010). Gareth Evan comments on Humanitarian Intervention as follows: “mistake of going to war when we should not, but also what can sometimes be the even bigger mistake of not going to war to protect our fellow human beings from catastrophe when we should”. (Sahnoun, November – December 2002 )

There are four core claims on the legality of the humanitarian intervention:

The plain meaning and language of UN Charter

UN Charter is being an “organic document” not answering the legal arguments

Viewing customary law and other normative practices as the legal basis of a state’s behavior

There is codified treaty law that define the rules for state behavior

Along with the four claims above, the question of morality is another issue. For example, the humanitarian intervention in Haiti would have been still justified without the OAS (Organization of the American States) sanctioning and the NATO’s intervention in Kosovo without Security Council mandate is “illegal but legitimate” but sanctioned for its “compelling moral purpose”.

When talking about Responsibility to Protect and it’s predecessor norm humanitarian intervention it is vital to remember that both are derived from Just War tradition “Quod est necessarium est licitum – ‘that which is necessary is legal’ in other words as quoted by the Prime Minister of East Timor “Some times war saves people”.  (Schrijver, 2000)

Sovereignty has a long history of colonial war and revolutions, and it is still promised with “self-determination” and “future free from outside interference” which is considered to be as just an “emotional attachment”. At this juncture it is worthy to note Gerath Evan’s view on sovereignty “Sovereignty thus hard won, and proudly enjoyed, is sovereignty not easily relinquished or compromised”

The following responses on NATO’s intervention in Kosovo would reflect the nation states’ take on “sovereignty”

Algerian President, and then President of the Organization of African Unity (OAU), Abdelaziz Bouteflika, in addressing the UN General Assembly in 1999, advocated the value of sovereignty as “our final defense against the rules of an unjust world”

Former Secretary of State and realist scholar, Henry Kissinger lambasted British Prime Minister Tony Blair after the intervention in Kosovo for the “abrupt abandonment of the concept of national sovereignty”

Nelsen Mandela in 2000, saw military action in Kosovo as: “such disregard for international conventions was more dangerous to world peace than anything that was currently happening in Africa

The basic problem is that the individual is protected by intervention whereas the state in protected by territorial sovereignty and non-intervention.

“the international community’s actual record of preventing and halting the mass killing of civilians is staggeringly poor”

The theoretical vacuum between non-intervention and moral responsibility to protect humanity at risk engulfs majority global crisis and thus Responsibility to Protect became the solution.

R2P can be metaphorically compared to a bridge that connects indeterminacy of intervention vs sovereignty. (Stahn, 2007 )

R2P and practical successes

In Kenya after the presidential elections in 2007, the violence outbroke with the killing of 1000 people and displacement of 250,000. Frances Deng, through the Special Advisor on the Prevention of Genocide (OSAPG) used R2P to charge political leaders who are inciting violence. As a result, the inflammatory speech and hate comments were banned and it reduced considerable amount of human sufferings.

Libya is another watermark example for R2P is where Kadaffi’s regime was thrown out not only by his death but also by successful international mobilization and application of humanitarian principles. At this moment it is worthy to note Jack Straw, as British Foreign Minister said: “if this new responsibility had been in place a decade ago, thousands in Srebrenica and Rwanda would have been saved”(Thakur, 2011)

R2P – Failure Stories

When declaring Responsibility to Protect through a UNSC resolution, it is extremely difficult to gain the consent or the support of all the nation states in unity especially the P5. In Resolution 1973 on Libya the most important international actors like India, Russia, China and Brazil chose to abstain rather than endorse the Resolution whereas the BRICS countries expressly stated their distrust in Responsibility to Protect.

The case of Darfur

When Darfur was in the need of humanitarian assistance, The R2P was explicitly declared by British Government, and the UNSC resolution condemning Khartoum. It was later realized by the international community that the key players of the international politics were unwilling to support humanitarian operations through providing necessary military troops. R2P does not expect consent from the targeted states and UNSC Resolution 1706 called “the consent for national unity” from international governments which was ended up as failure. Lee Feinstein articulates “If Darfur is the first ‘test case’ of the responsibility to protect there is no point in denying that the world has failed the entry exam”.

Although the Kenya sets an example of a successful R2P application, it was criticized that R2P used more as a “diplomatic tool than a catalyst for action”. Kenya’s act of dragging R2P into the territory without a clear-cut evidence of ethnic cleansing and only 700-800 confirmed deaths also questioned the threshold of the doctrine of responsibility of protect.

R2P failed to protect about 150,000 of people who were at a huge humanitarian risk in Sri Lanka at the final phases of war when the Government of Sri Lanka turned its defensive humanitarian operation into offensive. The intervention of international community was widely expected at the final moments of war and Crawshaw from Human Rights watch criticized it as points “there was a failure to address the Sri Lankan issue and that I think can be said to be indicative of where the gap between the words and reality is”.

In Mali, despite of three explicit UN Resolutions and the support of ECOWAS, the unilateral intervention of France was needed to proceed international assistance. As per the UN Commission on Inquiry, the government of Guinea committed crimes against humanity, yet the language of R2P was nowhere to be seen.  In the case of DRC (Democratic Republic of Congo), the UNSC failed to authorize intervention under the guise of Responsibility to Protect. Although troop expansions, mandate strengthening and greater assistance were given in DRC, the R2P had no practical impact.

The issue of Israel’s assault on Gaza was raised at the UNGA in 2009 and the citizens of Gaza were in need of R2P Solution. The failure to intervene reflected of a “selective application” and “double standards”.

Apart from the failed intervening moments on humanitarian grounds, the misappropriation created more confusions which leads back to the indeterminacy of intervention versus sovereignty. French intervention Myanmar upon the post-Nargis Cyclone rebuilding, Russia’s misinterpretation of R2P language to annex South Ossetia in which Russian Foreign Minister Sergei Lavrov stated that the “proximity of the conflict makes it absolutely unavoidable to us to exercise responsibility to protect”, and Tony Blair’s use of R2P to invade Iraqin 2003 are some of the examples where the prism of R2P was misused. These incidents not only questioned the threshold of the doctrine but also invalidated the manifestation of the four mass crimes covered by the R2P.

Political Will

The “age of strict national sovereignty” started to change slowly during 1990’s after some acts such as UN Resolution to authorize no fly-zone over Iraqi-Kurdistan under the justification of “right to intervene” and legitimatization of entering into the crisis zones such as Rwanda and Darfur under Genocide Convention. The establishment of ICTY and ICTR and evolving realm of human rights and human security always reconstructed the practices of sovereignty time to time. The slogans such as “its people’s sovereignty rather than sovereign’s sovereignty”, “sovereignty is also a responsibility” have started to articulate the international law. Thus, in the present context sovereignty is not a challenging ground to R2P as it is expected to be. The foremost and challenging barrier to responsibility to protect is the lack of moral and ethical will.  This is explained by Alex Bellamy, the reason that humanitarian intervention was not successful pre-R2P was “the basic political fact that no state wanted to pay the price associated with saving strangers”. With absence of strict sovereignty concept, the scholars of international law acknowledged the need of a strong “political will” to back it up as Lee Feinstein observed in the World Summit. Aidan Hehir explains that “political will is the variable upon which the entire utility of R2P is now predicated”. The General Assembly 2009 recognized the need of “political will at the right time” and the co-chair of the ICISS report, Gerath Evans noted that “without the exercise of political will, by the relevant policy makers at the relevant time, almost none of the things for which this book has argues will actually happen”.

The failure of the doctrine during Rwandan Genocide was, according to Thakur, due to lack of “civic courage and collective consciences, UN inquiry pointed out “lack of resources and political commitment”, andICISS finally concluded as “a failure of international will”.  Taking East Timor scenario into consideration, a senior diplomat and scholar in Jakarta described the unwillingness to intervene as “Indonesia matters and East Timor doesn’t and Aida Hehir commented “it was clear that no intervention would take place without Indonesia’s consent”. The Srebrenica massacre is another example where the Report of the Secretary-General 1999 commented that “the cardinal lesson of Srebrenica is that a deliberate and systematic attempt to terrorize, expel or murder an entire people must be met decisively….with the (requisite) political will”. The Democratic Republic of Congo, Somalia, Sri Lanka and North Korea are some of other examples where the international community lost consciences to intervene.  Bernanrd- Henri Levy , an author in the Public Intellectuality commented of the fact that French Government was successful in the gist of R2P in Darfur, yet failed in other scenarios due to a single issue of “ the political will of one man, the President of the French Republic, Nicolas Sarkozy” also raised a question “If Libya, then why not Bahrain, Yemen, or Syria?”.  Leon Panetta, the Defense Secretary of United States viewed the failure of American Administration to intervene into Syria as “we learned a lot about how to confront al-Qaeda and its affiliated as a result of operation in Pakistan and Afghanistan…. we know how to do this”.

Responsibility to Protect: Weaknesses and Recommendations 

Would R2P work as a regional protection?

Responsibility to protect fails mostly in the initial stage of its implementation by two reasons: 1. The United Nations Security Council fails to get the consent of the Permanent Members, 2. It may fail in the  national level as the governments use the concept to achieve it’s national interests which would further lead to a development of a “neo-colonial state” that uses power to oppress citizens. (O’Donnell, 2014)Since R2P was formed on the basis of United Nations values and United Nations Charter authorizes the validity of regional arrangements in resolving conflicts, the new suggestion merged of implementing Responsibility to Protect as a regional arrangement. While having R2P implemented by Regional Organizations, the implementation would limit itself within its purposes and the there would be less infringement of state sovereignty. (Shen, 12th January 2000)

All the regional arrangements are agreed upon a certain Charter (a treaty or an agreement) that binds the member states and the rights to intervene or the theory of responsibility to protect can be included in such binding provision. In those circumstances, the ROs can intervene with the help of member states using either permanent troops and troops called upon member states. While using Responsibility to Protect through regional arrangements would stop the intervention of powerful states with geopolitical interests, spill over effect on developing and third world countries, serve with the bona fide intervention of protecting civilians from human rights violations. (Naomi Kikoler, September 2009 )Regional Organizations maintain strong economic, cultural, historic and political ties with the violating state and member states which would create a quicker response and most of the armed conflicts rise around regional level more than national and international level. It is also vital to note that incorporating R2P with Regional Organizations is just a logical choice that needs legal attention to be executed since some of the regional organizations are controlled by the hegemonic powerful states within it especially when the RO is a continent spanning (Example: African Union). (Rosenperg, 2009 )

UN Charter’s Article 2 strict prohibition against use of force can be made favorable to responsibility to protect applying two arguments: a sovereign state can limit its sovereignty by entering into multi-lateral treaties and the interpretation of the language of the UN Charter itself. When it comes to the sovereignty issue foremost requirement to overcome the national sovereignty problem is that the R2P must be squared with UN Charter’s recognition for the “sovereign equality of all its Members” and UN Charter’s prohibition against “the threat or use of force against the territorial integrity or political independence of any state”. (Orford, February 2011 )The dilemma fails to understand how a state can fundamentally establish its own right to limit its sovereignty through ratifying treaties and other international obligations. The UN Charter can be taken as a simple example and further the R2P is a pre-requisite for a statehood as per the Montevideo Convention expects nation-states to have the capacity to enter into relations with other states to earn legal recognition in the international law. The ICISS reports points out “external sovereignty” (respecting other states) is only applicable for the states which fulfill the obligations come under the “internal sovereignty” (the primary obligation includes protection of civilians within the territory). According to Crossly, the concept of “equal sovereignty” in international customary law for the states who misuse their “internal sovereignty”. (Henrikson, 1996)

The Article 2 of the UN Charter is ambiguous, not only restricts the application of responsibility to protect concept but also challenges the practicability of Regional Organizations utilizing this international law norm.  Article 53 of the Charter emphasizes that Regional Organizations are not authorized to “enforce actions” without the UNSC Resolution. Article 24 is vested with promoting international peace and security and thus Article 54 expects the ROs to support for peace and security arrangements within the regional level. (Zifcak, 2011) Further, ROs are given secondary authority to deal with peace and security conflicts within the region, next to International Organizations and International Treaty Law. This freedom can be misused and the most practical example is NATO’s intervention in Kosovo which was criticized by the international society as it lacked humanitarian purpose. Therefore, it is important the ROs’ founding Charter should include the clauses of R2P which are justified validly by Member States before incorporating. (Cuéllar, 2004)

The most recent practical example of how Regional Organizations can be effectively utilized to tackle down the internal conflict of a region under the concept of Responsibility to Protect. When Boko Haram Insurgency started threatening the political integrity of Nigeria and the Member States, the African Union initiated multiple actions against terrorist including creation of “Multinational Joint Task Force”, without any approval from UN Security Council.  Instead of waiting for Security Council’s approval, having known to the background of the Nigerian integrity and the situations of the neighbor states, African Union used Responsibility to Protect as an effective counter-terrorism strategy to defeat Boko Haram. (Brechenmacher, 2019 May )

Responsibility to Protect is an obligation of internationality based on humanitarian concern of preventing mass atrocity crimes and human rights violations. Adapting to some theoretical and practical challenges can not only strengthen the implementation of the norm but also fill the already existing loopholes found in the application of the norm.  The changes include incorporating of Regional Organizations as players of intervention overlapping the R2P concept, making structural changes in the United Nations Security Council methodology and stressing out the fact the R2P should carry a legally binding role in the international customary law although it is not passed through a legally binding treaty.

MaathumaiParanthaman is a UN Volunteer attached to Office of the High Commissioner of Human Rights (OHCHR). She currently works as a Program Support Officer at Human Rights Commission of Sri Lanka. She holds LL.B (Hons) from University of Wolverhampton, UK and a Master in Human Rights at University of Colombo. Her research focuses on human rights, conflict and peace studies and international law.

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International Law

Why Human Rights Abuses Threaten Regional and Global Security

Ebad Mobaligh

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Human rights scholars (Brysk, 2009, Mullerson 1997, Chirot and McCauley 2010) argue that discrimination against people on the basis of their religious beliefs, ethnicity, and gender and violations of their social, economic, and security rights, and political opinions leads to conflicts. In response to the discrimination and violation of their rights, people either start to revolt against the aggressor or immigrate to neighboring countries for safety and protection. The rebellion is either supported by locals, locals immigrated to neighboring countries, other states who may obtain a personal gain, or in the name of human rights protection. In each of these scenarios, the internal insecurities cross borders and, with other states’ involvements, eventually become a global insecurity. Modern technology, including social media, globalized economy, and massive immigrations can easily transfer the effect of conflict from one part of the world to the others (Chirot and McCauley 2010). Mullerson argues that in the case of human rights violation, there is a direct link between domestic and international stability. He further states that human rights violation has a direct correlation with domestic stability which may at least indirectly influence international stability (Mullerson 1997).  

The authors of “A Complex Network Analysis of Ethnic Conflicts and Human Rights Violations” state that these types of discrimination and violation of rights usually occur in states that are socio-politically unstable or are in the process of democratization (Sharma et al. 2017). Mullerson posits a similar suggestion. “Sometimes the initiation of the processes of liberalization and democratization of authoritarian or totalitarian regimes can have a similar effect” (Mullerson 1997, 37). The liberation and democratization of Iraq, Libya, and Afghanistan are excellent examples to support Mullerson’s argument. Sharma et al, examining conflict in new media from the around world, found a link between democratization and ethnic conflicts.

Mullerson further elaborates that during the Cold War, most threats to international relations came from domestic instabilities caused by human rights violation rather than cross-border attacks from different states (Mullerson 1997). The argument of Rainer and Goel regarding Myanmar’s genocide against its Rohingya Muslim minorities and the regional impact of its insecurities is one of the prime examples of arguments stating that there is a correlation between human rights violation and regional and global insecurities (Rainer and Goel 2020). Mullerson presents additional evidence, deriving from the growth of religious fundamentalists and their discrimination against other religions which is disturbing global instability. He further elaborates with regard to the treatment meted out by the extreme right-wing pro-Hindu Bharatiya Janata Party (BJP) to the Muslim minorities in India and argues that the religious beliefs of the BJP are a recipe for intra-religious conflict (Mullerson 1997). India, one of the world’s largest democracies, has witnessed streams of intra-religious violence since the BJP came into power. Mullerson argues that the internal conflict in India may not cause global instability since Hindu extremism is confined within the borders of India; however, he suggests that the Islamic fundamentalists view Western secularization, democracy, and the global social economy as a threat to their fundamental values, and that this may be the biggest threat to many countries as well as the entire world (Mullerson 1997). He further argues that the Russians, who deem the technological and economic growth of the Western countries as a threat to their national security, may further fuel the agenda of the Islamic fundamentalists to slow the technological and economic advancements of the West. 

It is evident from all the arguments that discrimination against people on the basis of their religious beliefs, ethnicity, and gender and violations of their social, economic, and security rights, and political opinions lead to conflicts. Significant evidence has been provided to suggest that in the case of Myanmar, the internal conflict not only created internal and regional instability but also resulted in economic instabilities for Myanmar. Alison Brysk states that there is a direct correlation between human rights and the long-term stability of a state (Brysk 2009).

After WWII, and ever since the Universal Declaration of Human Rights was signed in the UN, many states with stable democracies have incorporated human rights into their foreign policy either by being a good Samaritan or under pressure from human rights institutions to address human rights violations in other states. The policy was not given much consideration during the Cold War; however, after the Cold War, many states took actions even against their old friends who committed gross human rights violations during the Cold War.

However, Brysk argues that states do not sacrifice their national interest to protect other states. He states, “Global good citizen states see the blood, treasure, and political capital they contribute to the international human rights regime as an investment, not a loss. Like other states, global good Samaritans are following their national interest; the difference is that they have a broader, longer-term vision of national interest” (Brysk 2009). However, that is not the goal of the discussion in this paper; the main argument here is that as other states get involved whether for being a good citizen of the world or for their personal interest, the conflict is dragged outside the borders of the states. The US actions to stop aid to Myanmar, the North Atlantic Treaty Organization (NATO) and the US’ military operation against Yugoslavia to protect ethnic Albanians and prevent regional instability are prime examples of internal conflicts due to human rights violation, creating insecurities regionally as well as globally.

Bibliography

Brysk, Alison. 2009. Global Good Samaritans: Human Rights As Foreign Policy. New York, UNITED STATES: Oxford University Press USA – OSO. http://ebookcentral.proquest.com/lib/apus/detail.action?docID=415385.

Chirot, Daniel, and Clark McCauley. 2010. Why Not Kill Them All?: The Logic and Prevention of Mass Political Murder. Princeton, UNITED STATES: Princeton University Press. http://ebookcentral.proquest.com/lib/apus/detail.action?docID=617256.

“How to Fail at Regime Change | Harvard Political Review.” n.d. Accessed September 21, 2020. https://harvardpolitics.com/world/regime-change-failure/.

Mullerson, Rein. 1997. Human Rights Diplomacy. London, UNITED KINGDOM: Taylor & Francis Group. http://ebookcentral.proquest.com/lib/apus/detail.action?docID=1665651.

Rainer, Elise, and Anish Goel. 2020. “Self-Inflicted Instability: Myanmar and the Interlinkage between Human Rights, Democracy and Global Security.” Democracy and Security ahead-of-print (ahead-of-print): 1–17. https://doi.org/10.1080/17419166.2020.1811968.

Sharma, Kiran, Gunjan Sehgal, Bindu Gupta, Geetika Sharma, Arnab Chatterjee, Anirban Chakraborti, and Gautam Shroff. 2017. “A Complex Network Analysis of Ethnic Conflicts and Human Rights Violations.” Scientific Reports 7 (1): 8283. https://doi.org/10.1038/s41598-017-09101-8.

Wehrey, Frederic. n.d. “Why Libya’s Transition to Democracy Failed.” Washington Post. Accessed September 21, 2020. https://www.washingtonpost.com/news/monkey-cage/wp/2016/02/17/why-libyas-transition-failed/.

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International Law

Freedom of religion in the African Human Rights System

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Apart from the Mainstream religious beliefs such as Islam and Christianity, Africa is also the home of different indigenous religious beliefs most of which are considered regressive. For scholars like Lauric Henneton, colonization in the early modern period was as much about religious missions, about ‘the harvest of souls’, as it was about expanding territorial boundaries and economic resources. In post-colonial Africa, the primary goal of the Organization of African Union(OAU) was defending the sovereignty and territorial integrity of its member states rather than promoting and protecting the individual rights of the people of Africa. The latter becomes a matter of priority when the African Commission established by the African Charter on Human and peoples’ Right (the Banjul Charter) in 1981. Article 8 of the Charter provides that: “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.”This provision does not explicitly mention the word “belief” despite the fact that the right to hold a particular belief is generally considered to be an absolute one. Furthermore, this provision fails to guarantee the right to change one’s religion. However, probably the most problematic part of Article 8 of the charter is its inclusion of ‘the claw-back clause’ – “…subject to law and order…”. Such formulation allows member states to limit the right to freedom of religion ‘to the maximum extent permitted by domestic law’. In other words, they can enact laws which could potentially violate the right to freedom of religion and negate the regional human right protection system.  Even though it has never been the primary subject of contention, the issue of freedom of religion has dealt with by the African Commission and Court of Human and peoples’ rights as an auxiliary matter in several cases. In this blog post, I will present four different cases related to freedom of religion decided by the ACHPR and the ACtHPR in their chronological order.   

Amnesty International and others v. Sudan

In this case, the complaints described numerous serious violations that took place in different parts of Sudan, primarily between 1989 and 1993. The cases were submitted by four different Non-Governmental organizations alleging that the Sudanese government involved in extrajudicial and summary execution, torture and discrimination on the basis of religion. Though the case involves a number of issues, for the purpose of this blog I will only focus on the ruling of the commission regarding freedom of religion. It was alleged that Christians and other non-Muslims were subjected to expulsion, arbitrary arrests and detention. Their churches were closed, and religious leaders were prevented from getting food with the aim of converting them to Islam. In addition to this, the domestic court of Sudan entertained their case based on Shari’a law which is not subscribed by those victims. The government, on the other hand, alleged that Sudan has guaranteed the right to freedom of faith and worship in its constitution.

The commission founds violation of Article 8 and Article 2 of the African charter stating that

“There is no controversy as to Shari’a being based upon the interpretation of the Muslim religion’, but when applying Shari’a the tribunals in Sudan must do so in accordance with the other obligations undertaken by the State of Sudan. Trials must always accord with international fair-trial standards”

The commission has also emphasized that “Shari’a law, being based on a religious belief, should not be applied to those who do not adhere to the religion of Islam” Accordingly,  tribunals that apply only Shari’a law are not competent to judge non-Muslims, and everyone should have the right to be tried by a secular court if they wish.” Concerning other claims related oppression of religious leaders and expulsion of missionaries from the country, since the government of Sudan fails to ‘provides evidence or justifications that would rebut the allegations” the commission concluded that there has been a violation of Article 8 of the Charter. 

Centre for Minority Rights in Development and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya

This case started following the eviction of thousands Endorses tribe members by the then Kenyan government to create a game reserve for tourism. The area from which the community was evicted, according to the complainant had been considered as “the spiritual home of all Endorois”. Their eviction, thus, prevented them from practicing their religion in the appropriate place.  After exhausting all the domestic remedies, in 2003 the Centre for Minority Rights Development and Minority Rights Group International brought the communication to the African Commission on behalf of the Endoroi community. Before the commission, the government argued that even though the eviction had actually happened, it was justified and “subject to administrative procedures” The commission found infringement of freedom of religion of the community reasoning that the action of the government was neither necessary nor backed by sound justifications. The commission asserted that “allowing the Endorois community to use the land to practice their religion would not detract from the goal of conservation or developing the area for economic purposes”. Most importantly, in a way which could remedy the shortcoming of Article 8 of the Charter, the commission  underscored that “states cannot take recourse to the limitation clauses of the African Charter  in order to violate the express provisions of the charter and its underlying principles”(Para. 173)

Prince v. South Africa

The case started following Mr. Garreth Anver Prince’s denial of access to the bar in South Africa due to his religious use of cannabis (he was a member of the Rastafari). His claim was that the prohibition of cannabis usage for ritual purposes amounted to a disproportionate infringement on his right to freedom of religion.   In addition to his freedom of religion, Mr. Prince alleged that the prohibition of the use of marijuana is an affront to his dignity. The Constitutional court of South Africa decided against Mr. Prince underscoring the qualified or non-absolute nature of the right to freedom of religion. The court specifically ascertained that “While members of a religious community may not determine for themselves which laws they will obey and which they will not, the state should, where it is reasonably possible, seek to avoid putting the believers to a choice between their faith and respect for the law.” Following his unsuccessful appeal, Mr. Prince brought his case before the African Commission on Human and Peoples’ Right claiming that South Africa had violated, inter alia, his freedom of religion. The commission affirm the decision of South African constitutional court emphasizing that while the right to hold religious beliefs is an absolute one, the right to act according to the belief is not. As such, “the right to practice one’s religion must yield to the interests of society in some circumstances” (para 41). In legitimizing the limitation imposes by South Africa, the commission made reference to Article 27 of the African Charter which provides the necessity of considering the rights of others in allowing the exercise of any right guaranteed therein.

The African Commission on Human and Peoples’ Rights v. Kenya

The African commission V. Kenya is the latest decision rendered by the African Court of Human and Peoples’ Rights related to the right to freedom of religion. Unlike the rulings of the commission which are merely recommendations, the court’s decision has binding effects. Nevertheless, the court’s mandatory jurisdiction is shrinking.  Within the past six months, Tanzania, Benin and Ivory Coast have revoked the right of individuals and NGOs to sue them before the ACtHPR. Consequently, out of 54 member states of AU, the court has binding jurisdiction only over five countries.[1] The facts of this case are similar to the second case discussed in this paper. Following the eviction of members of the Ogiek community from their ancestral land, non-governmental organizations that represent the interest of the community brought an action before the Commission alleging that the action of the Kenyan government had violated different rights of the ogiek tribe members which are enshrined in the African charter. One of which was the right to freedom of religion. The government, on the other hand, argued that the “applicant has failed to adduce evidence to show the exact places where the alleged ceremonies for the religious sites of the Ogieks are located”. The respondent state has also contended that members of the community have already changed their religion to Christianity and therefore the forest has no relevance to exercise their religion.

The court decided that there was a violation of Article 8 of the African charter reasoning that “the communities’ religious practices were inextricably linked with the land and the environment and that interference with their connection to the land placed severe constraints on their ability to practice religious rituals.” (para 166 and 167)


[1] Côte d’Ivoire, Ghana, Mali, Malawi, and Rep. of Tunisia

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International Law

Triangularity of Nuclear Arms Control

Alexander Savelyev

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In December 2019, the United States officially invited China to enter intoa strategic security dialogue. The White House said it hoped Beijing’s consent to this proposal might become the first step towards an international agreement encompassing all nuclear weapons of the United States, Russia, and China.As expected, this proposal was rejected. China said its nuclear arsenal was much smaller than those of the United States and Russia, and it would be able to participate in such talks only when their nuclear potentials were brought to parity with its own.

In March 2020, U.S. President Donald Trump once again declared his intention to ask Russia and China to hold such talks with the aim of avoiding a costly arms race (Reuters.com, 2020).The Chinese Foreign Ministry’s response followed virtually in no time. Its spokesperson Zhao Lijian said that China had no intention of taking part in the so-called China-U.S.-Russia trilateral arms control negotiations, and that its position on this issue was very clear (ECNC.cn., 2020). He called upon the United States to extend the New START and to go ahead with the policy of U.S-Russian nuclear arms reduction, thus creating prerequisites for other countries to join the nuclear disarmament process. There is nothing new about China’s stance. A year earlier Chinese Foreign Ministry spokesperson Geng  Shuang, while speaking at a news conference in May 2019, made a similar statement. China refused to participate in a trilateral arms control agreement (Fmprc.gov.2019).

It is noteworthy that while advising the United States and Russia to downgrade their nuclear potentials to its level, China does not say what exactly this level is. One of the rare official statements (if not the sole one) on that score was the Chinese Foreign Ministry’s statement, published on April 27, 2004,that China’s nuclear arsenal was the smallest of all (Fact Sheet China, 2004). Even in that case the Chinese Foreign Ministry did not specify if it was referring to the quintet of the UN Security Council’s permanent members. If so, China’s nuclear arsenal, according to official statistics, consisted of no more than 190 warheads (Britain’s level that year). Such(understated according to most analysts)estimates, have also been mentioned by a number of experts. For example, Harvard researcher Hui Zhang says China in 2011 had 166 nuclear warheads. There are other, higher estimates. For instance, Professor Phillip Karber of Georgetown University believes that China has 3,000 warheads at its disposal (Karber, 2011), while many other researchers call this in question.

The estimate offered by H. Kristensen and M. Korda of the Federation of American Scientists, who issue annual world surveys of nuclear arms potentials, is shared by most researchers and draws no objections from political circles in various countries, including the United States. According to their calculations as for April 2020,the United States had 3,800 deployed and non-deployed nuclear warheads, and Russia, 4,312 warheads. As for China, the same survey says it has 320 non-deployed nuclear warheads (Kristensen and Korda, 2020).

While underscoring the importance of nuclear arms cuts by the United States and Russia to China’s level, Beijing does not specify if this idea applies only to strategic or all nuclear weapons. In the former case, if China’s approach is to be accepted, Russia and the United States would have to slash their nuclear arsenals by 65%-75% (from 1,550 deployed nuclear warheads in compliance with the rules of the still effective New START). But if the total number of nuclear warheads on either side is to be counted, each country’s nuclear potential would shrink by no less than 90%. Only after this will China be prepared to consider in earnest its participation in nuclear arms control talks.

The United States and Russia can hardly find this suitable. At the same time, these countries have not yet officially formulated their specific approaches to and basic provisions of hypothetical trilateral talks and a future agreement on this issue. For the time being, these issues are in the focus of experts’ attention in a number of countries, and theyhave over the past few years offered a variety of possible formats and parameters of a future “multilateral” treaty. In most cases, experts delve into certain aspects of a future agreement that might be attractive to China. Very few think of what China might lose the moment it enters into nuclear arms control talks or what military-political consequences might follow if China eventually changed its mind regarding participation in such negotiations.

In my opinion, China’s demand for achieving the “comparability” of nuclear potentials as a precondition for beginning a trilateral dialogue stems precisely from its evaluation of the consequences of its participation in the negotiations. This stance is neither far-fetched nor propagandistic, contrary to what some experts and politicians claim, but rests upon major political, military and strategic cornerstones. Disregard for China’s arguments actually reduces to nothing all efforts, above all those taken by Washington, to engage Beijing in nuclear arms talks.

As far as the United States is concerned, the motives behind its attempts to persuade China to join nuclear arms talks are not quite clear. There may be several possible considerations that the United States is guided by in its policy on the issue. One is that Washington may be looking for a way to obtain necessary information about the current state of China’s nuclear potential and plans for its development in the future in order to be able to adjust its own modernization programs accordingly. Another explanation is that the United States may be reluctant to go ahead with the nuclear disarmament policy and hopes to use China’s unequivocal refusal to participate in negotiations as a chance to blame it for the disruption of this process and for dismantling the nuclear arms control system as such. I believe both explanations may be true, but their analysis lies beyond the scope of this article.

Options Of Engaging China In Nuclear Arms Control Talks

“Americans performed three very different policies on the People’s Republic: From a total negation (and the Mao-time mutual annihilation assurances), to Nixon’s sudden cohabitation. Finally, a Copernican-turn: the US spotted no real ideological differences between them and the post-Deng China. This signalled a ‘new opening’: West imagined China’s coastal areas as its own industrial suburbia. Soon after, both countries easily agreed on interdependence (in this marriage of convenience): Americans pleased their corporate (machine and tech) sector and unrestrained its greed, while Chinese in return offered a cheap labour, no environmental considerations and submissiveness in imitation.

However, for both countries this was far more than economy, it was a policy – Washington read it as interdependence for transformative containment and Beijing sow it as interdependence for a (global) penetration. In the meantime, Chinese acquired more sophisticated technology, and the American Big tech sophisticated itself in digital authoritarianism – ‘technological monoculture’ met the political one.

But now with a tidal wave of Covid-19, the honeymoon is over” – recently wrote professor Anis H. Bajrektarevic on a strategic decoupling between the biggest manufacturer of American goods, China and its consumer, the US.

Indeed, Washington has not formulated in detail its official stance on engaging China in negotiations yet. Disarmament experts consider a number of options that may be proposed in principle. These options may be grouped into three main categories. The first one is putting pressure on China with the aim of making it change its mind regarding arms control. The second one is the search for proposals China may find lucrative enough, which the Chinese leadership might agree to study in earnest. And the third one is a combination of these two approaches.

As far as pressure on China is concerned, the United States is already exerting it along several lines. For one, China is criticized for the condition and development prospects of its nuclear arsenal. Specifically, it is blamed on being the only nuclear power in the Permanent Big Five that has not reduced its nuclear potential. Moreover, as follows from a statement made in May 2019 byRobert Ashley, Director of the Defense Intelligence Agency, “over the next decade, China is likely to at least double the size of its nuclear stockpile in the course of implementing the most rapid expansion and diversification of its nuclear arsenal in China’s history”(Adamczyk,2019). Both officials and many experts have been quoting this postulate asan established fact requiring no proof.

China is also accused of the lack of transparency, that is, refusal to disclose the size and structure of its nuclear forces, programs for their upgrade, and other nuclear policy aspects. The U.S. leadership argues that this state of affairs by no means promotes strategic stability and international security. Some experts believe that China’s involvement in negotiations would help avoid some adverse effects, for example, another nuclear arms race under a Cold War scenario (Zhao, 2020). Rose Gottemoeller, U.S. Undersecretary of State for Arms Control and International Security in the Barack Obama administration, believes it may be possible to “make a case for the Chinese to come to the table early on intermediate-range constraints of ground-launched missiles, because they are staring at the possibility of a deployment of very capable U.S. missiles of this kind” (Mehta, 2020).

Apparently, the United States had counted on Russia’s support in such matters, especially as the Russian leadership said more than once that the New START, signed in 2010,was to become the last bilateral nuclear arms reduction treaty and time was ripe for other nuclear states to join the nuclear disarmament process. However, in late 2019 Russia made a U-turn in its stance on China’s participation in negotiations. Speaking at a conference entitled “Foreign Policy Priorities of the Russian Federation in Arms Control and Nonproliferation in the Context of Changes in the Global Security Architecture,” held on November 8, 2019 in Moscow, Russian Foreign Minister Sergei Lavrov said that Russia respected China’s position concerning its refusal to participate in the talks. Moreover, he stated that declaring China’s consent to participate in the negotiating process as a precondition looked “openly provocative.”Thus Russia made it clear that it had no intention of putting pressure on China regarding the issue, but at the same time it would have nothing against the Chinese leadership eventually making a decision to join the United States and Russia in nuclear disarmament talks. Russia is unlikely to alter its position even under pressure from the United States, which has long harbored plans for using the prolongation of the New START as a factor for getting China involved in the talks in some way, or even securing its consent to become a signatory to the treaty. Specifically, the U.S. president’s National Security Advisor Robert O’Brian made an unequivocal statement on that score (Riechmann, 2020). Also, in May 2020, the United States came up with an ultimatum that it would not extend the New START until China agreed to participate in it. Moreover, the newly appointed special U.S. presidential representative for arms control, Marshall Billingslea, actually demanded that Russia “bring the Chinese to the negotiating table.”

The United States may exert (or is already exerting) pressure on China “indirectly, ”for example by using such levers as the U.S.-Chinese trade war and China’s alleged “responsibility” for the spread of the coronavirus (which the United States regards as proven). Such pressures may be largely exerted covertly.

Some military and political experts believe that it is worth exploring compromise options of China’s participation in nuclear arms control. Such optionsmay accommodate the interests of all partakers and match the specific structure and quantitative parameters of weapons subject to control. Establishing transparency in the given sphere would be one of the “simple” ways of involving China in the strategic dialogue. In other words, such transparency would imply mutual disclosure of information about the number of missiles and deployed warheads, their basic parameters, including range, and also specific locations and deployment sites (Tosaki, 2019). It must be noted that this seemingly “least painful” and easy-to-accomplish solution for making China join the international arms control dialogue is in fact least acceptable to it.

The long list of other proposals includes various options of a “mixed” approach to the control of missile systems. For instance, reaching an agreement on a common ceilingfor intermediate-range ground-based and air-launched missiles or a similar restriction on any strategic missiles regardless of the type of deployment (ground, sea, or air launched), as well as the intermediate-range missiles of three nuclear powers―China, the United States, and Russia. The proponents of this approach believe that this may provide an approximately equitable basis for talks among the aforesaid states (Zhao, 2020).

All of the aforementioned recommendations―and a number of other ideas―for plugging China into bilateral or multilateral nuclear arms control talks are based on the past experience of negotiations on the issue. In the meantime, the specifics of China’s nuclear policy are left unnoticed or intentionally ignored. It is generally believed that inviting China to participate in negotiations is tantamount to official recognition of its status as a great power responsible, like the United States and Russia, not only for its own security but also for global security. This recognition is often considered a reason enough to expect China to consent to participate in such negotiations and the main problem is seen in the formulation of concrete proposals for discussion. In the meantime, such an approach looks erroneous.

The Fundamental Principles Of China’s Nuclear Policy

China’s policy concerning nuclear arms and their role in maintaining national security has remained unchanged for more than 55 years, starting from its accession to the “nuclear club” in 1964. Central to that policy is China’s pledge not to be the first to use nuclear weapons or threaten to use them against non-nuclear countries and countries in nuclear free zones. It is believed that Mao Zedong made that decision personally in 1964 (Fravel, 2019).

In accordance with this pledge, China, as it reiterates, maintains its nuclear deterrence weapons at a required minimum by declaring its readiness for retaliation against an aggressor in the event of a hypothetical nuclear attack. China vows it does not participate in a nuclear arms race against any country. These provisions have remained unchanged for many years and can be found in many Chinese fundamental military and strategic planning documents, available from open sources (The State Council, 2019), and are repeatedly quoted by the Chinese mass media (Xinhuaneet.com., 2019).

In contrast to the classical nuclear deterrence formula China does not demonstrate its retaliatory strike capabilities; on the contrary, it conceals them for various reasons. Enhancing the survivability of retaliatory strike systems is one. Such “existential” means of deterrence enables the country possessing a relatively small nuclear potential to keep a potential aggressor in a state of strategic uncertainty as it cannot be certain that its first strike would “disarm” the defending opponent by eliminating all of its nuclear weapons with a surprise counterforce strike.

To confirm its adherence to the no-fist use principle, China declares that it limits its nuclear potential to the “minimum” defense requirements, while all upgrade programs are geared mostly to ensuring the survivability and reliability of retaliatory strike systems. China’s nuclear forces have become more survivable due to the creation and deployment of mobile ICBMs, and measures to shelter a considerable part of its nuclear potential, including mobile ICBMs and shorter-range missiles in a network of underground tunnels―the Underground Great Wall of China. Also, other means of hiding nuclear weapons are used, such as mock ICBM silos and shelters for nuclear submarines inside coastal rocks.

As the information about the condition, development prospects and size of China’s nuclear potential remains scarce, its nuclear policy issues are in the focus of attention of many specialists and think tanks in the United States and other countries. Most of them (but far from all) believe that China’s declared policy of no-first-use of nuclear weapons and estimates of its nuclear potential (around 300 warheads) agree with reality (Pifer, 2019). But other researchers maintain that under certain circumstances China may revise its attitude to the no-first-use principle and abandon the minimum deterrence concept in favor of gaining opportunities for conducting limited nuclear war. Such conclusions are made on the basis of data showing the growth of qualitative parameters of China’s nuclear forces―greater accuracy of nuclear warheads, the deployment of MIRVs on ICBMs, forecasts for a considerable increase in the overall number of nuclear weapons at the country’s disposal, etc. (Giacomdetti, 2014; Yoshihara and Bianchi, 2019; Schneider, 2019).

It should be acknowledged that the lack of official information about the condition and development prospects of China’s nuclear arsenal and implementation of programs in the strategic field (creation of a heavy ICBM, research and development of a missile attack warning system, deployment of a missile defense, and others)afford ground for a variety of speculations over China’s compliance with the professed principles regarding nuclear weapons.In the meantime, this by no means contradicts the fundamental principle of China’s nuclear policy―no-first-use of nuclear weapons―which will remain unchanged in the foreseeable future. Even if one assumes that China does participate in the nuclear arms race (which is also a subject of speculations), it is by no means its instigator.

Certain changes are possible, though. China may acquire real capabilities for a limited response to a limited nuclear attack. In other words, the country’s military-political leadership, empowered to make a decision to use nuclear weapons, will acquire extra opportunities and options for retaliation other than a massive nuclear strike against the enemy’s major unprotected targets, such as cities and industrial centers. At the same time there is no reason to say that the improvement of parameters of China’s strategic nuclear forces increases the risk of a first counterforce strike against a would-be aggressor just because the nuclear potentials of China and the two leading nuclear powers are incomparable. In this case size does matter.

Effects Of Arms Control On China’s Nuclear Strategy And Policy

Should China agree to participate in negotiations or draft an agreement on control of its nuclear weapons, its nuclear strategy and policy will most likely undergo the most serious changes. And these changes, in the author’s opinion, may be far from positive. They will result not from possible restrictions imposed on China’s nuclear forces or disadvantageous terms of a future treaty forced upon China, but the very fact of concluding such an international treaty.

A close look at Soviet-U.S. and Russian-U.S. nuclear arms control agreements reveals how the parties’ approaches to solving the problems of national security and strengthening strategic stability have been changing. At early stages the two sides managed to come to terms regarding the overall number of ground-based launchers of strategic ballistic missiles, SLBM capable submarines and SLBM launchers. Later, the class of strategic weapons was expanded to incorporate heavy bombers armed with long-range cruise missiles and gravity nuclear bombs. Some types of nuclear weapons, for instance, strategic air-launched ballistic missiles were banned. Next, there followed restrictions on nuclear warheads deployed on delivery vehicles and then their reductions. A total ban was applied to ground-based intermediate- and shorter-range cruise missiles. An attempt was made to outlaw ICBMs with multiple warheads. Each clause of the concluded treaties was scrutinized by the expert community and drew worldwide interest.

In addition, efforts were made to develop a mechanism to verify compliance with the assumed commitments. The first Soviet-U.S. agreements SALT-1 (1972) and SALT-2 (1979) assigned the control function to “national technical means of verification”―intelligence satellites. The contracting parties pledged to refrain from creating impediments to their operation. Also, the signatories undertook “not to use deliberate concealment measures which impede verification by national technical means of compliance.” In the next agreements―the INF Treaty (of 1987) and, particularly, START-1 (1991)―a comprehensive system of control and verification was developed and adopted. It envisaged exchanges of data (including the geographical coordinates of each ICBM silo) and various notifications and on-site inspections, which made it totally impossible to conceal even the slightest violations of these agreements. This system of verification functions within the framework of the still effective Russian-U.S. New START, concluded in 2010.

It is hard to imagine a hypothetical agreement with China not including compliance verification procedures. And it is very unlikely that the system of verification in such an agreement will be“soft,” as was the case with the one established under the earlier SALT-1 and SALT-2 treaties. On the contrary, as follows from statements by U.S. officials, the United States is determined to pay the closest attention to the verification and control of compliance with all future agreements. U.S. Acting Under Secretary of State for Arms Control and International Security Christopher Ford has made an explicit statement on this score.

Even if such an agreement does not impose any obligations on China, requiring reduction of its nuclear potential, Beijing will be expected to provide exhaustive information about its nuclear weapons and deployment sites. Also, China will have to give up measures to conceal its nuclear forces, change the locations of mobile missile systems and allow foreign inspectors to visit classified facilities (including the Underground Great Wall of China) in order to confirm that the provided information is correct and proper action has been taken under assumed commitments. Besides, China will have to notify other signatories of the commissioning of new nuclear weapons and withdrawal from operational duty or elimination of older systems, the redeployment of weapons, etc. All these measures will make it possible to keep under full control China’s nuclear potential and nuclear arms delivery vehicles.

These measures, understandable from the standpoint of an arms control treaty, may have truly disastrous effects on China’s entire official nuclear policy. Information disclosure and control measures would make China’s nuclear arsenal totally vulnerable to a first nuclear strike and partially – to a non-nuclear strike. A potential aggressor, possessing a considerable advantage in nuclear weapons and full information about the deployment sites, will have a guaranteed capability to destroy the adversary’s entire nuclear potential. Theoretically, it would spend far more nuclear weapons than the victim of the aggression (in this particular case, China) would lose, but still retain an enormous attack potential. In a situation like this, there will be no weapons available to deliver a retaliatory strike. All this will mean that China’s declared no-first-use policy will lose credibility. In other words, it will turn into a propaganda slogan, with no real resources to rely on to implement this policy in practice.

Apparently, it is precisely these considerations that are behind China’s refusal to participate in nuclear arms control talks, and they will remain in place at least until the strategic situation in this field undergoes fundamental change. One of the most important conditions for China to enter into such negotiations (it says so openly) is further reduction of nuclear arsenals by Russia and the United States to levels comparable with China’s potential. As it has been already stated, this condition, described as a political one, has fundamental strategic, military and technical grounds.

Likely Consequences Of China’s Participation In A Nuclear Arms Control Treaty

As has been said above, China’s consent to enter into nuclear arms control negotiations and conclusion of a corresponding agreement will be unlikely in the foreseeable future. Nevertheless, it is worth pondering on what decisions in the military and political field the Chinese leadership may adopt if it has to give in to U.S. pressure. One of the most important decisions is, to my mind, the possibility of China remaining committed to the no-first-use principle.

Currently, this principle is ensured not so much by the quantitative parameters of China’s nuclear arsenal, but as its stealthy deployment, concealment measures, and refusal to provide relevant information. In order to retain a retaliatory strike potential in a situation where the information about the deployment sites of China’s nuclear forces has been disclosed while the amount of nuclear arms available remains considerably inferior to those of the “partner” or “partners,” China will have to exert major efforts to ensure the invulnerability of at least some of them. Doing this will be impossible without a major buildup of the nuclear potential, above all, of the least vulnerable strategic systems (mobile ICBMs and SLBMs). All of this will require considerable expenses and time. Even if the work on a new treaty takes two or three, or even five years, one can hardly expect any considerable changes in the quantitative and qualitative structure of China’s nuclear forces by the moment this work is finalized.

The problem of strategic nuclear forces’ vulnerability may theoretically be resolved (at least to a certain extent) by developing and deploying missile defenses around deployment sites. But this would entail heavy spending, too. Also, such a program can hardly be implemented within tight deadlines. The problem of greater vulnerability of China’s strategic nuclear forces can also be resolved by adopting the “launch-under-attack” concept or “launch on warning” concept. Their adoption might be considered, although with great reservations, to conform to the no-first-use principle, but in this case it will be essential to build a warning system based on early warning satellites and radars. However, still there will be no guarantees that such a system will be able to issue a timely notification to the military and political leadership of a missile attack against China, if such a strike is carried out with U.S.S LBM shaving short flight-in time and counterforce capability. Under such a scenario China’s strategic forces will have to remain on high alert all the time. This means that China will be forced to give up keeping missile warheads in store separately and to deploy them on strategic delivery vehicles, thus demonstrating its readiness for instant retaliation in case of an attack warning.

The above arguments prompt the conclusion that China, if it agrees to the drafting and signing a nuclear arms control treaty, will certainly have to depart from the principle of no-first-use of nuclear weapons, with all the ensuing negative consequences. This may also trigger an enhanced arms race and induce China to adopt more aggressive nuclear arms concepts.

It is nakedly clear that China finds it far easier to refuse to hold nuclear arms control talks than address the adverse military and strategic effects its participation in such an international agreement is bound to entail. In this situation the United States should give more thought to its policy of engaging China in nuclear arms control talks and focus on Russian-U.S. strategic relations, including the prolongation of the New START without any linkages and preconditions.

As far as Russia is concerned, its current policy of avoiding pressure on China to make it engage in nuclear arms talks looks reasonable. From the political standpoint―alongside with other considerations―a trilateral agreement would mean that Russia officially regards China, albeit formally, as a “partner” (if not a “potential adversary”), just as the United States, and that strategic relations among such parties are based on the concept of nuclear deterrence, the balance of nuclear forces, and their capabilities to deliver first and retaliatory strikes. Incidentally, China’s participation would have the same implications for Russia. Lending this dimension to bilateral relations hardly meets the interests of the two countries.

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