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Sikhs And Justice: An International Humanitarian Law Approach To The Study Of Operation Bluestar

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6th of June 1984 is considered as the darkest day in the history of the Sikhs all around the world. This was the day when the Indian Army stormed the Golden Temple, the holy shrine of the Sikhs to drive out Jarnail Singh Bhindranwale and his armed men who had taken refuge in the Temple complex since 1982. Bhindranwale had started a movement to attain justice for Sikhs who were being discriminated on various grounds. The Indian Government saw this as a secessionist movement, which is why Bhindranwale and his group were considered as a threat to the nation. This paper endeavours to study the Operation Blue Star from the international humanitarian law perspective by establishing it as a non-international armed conflict. It is divided into five parts. The first part deals with the history and the background to the operation and also highlights the reason why the Indian Army attacked Golden Temple; the second part then throws light upon the definition and the types of the armed conflict in the international humanitarian law and also ingredients of a non-international armed conflict; the third part tests the incident of operation against the ingredients of a non-international armed conflict; the fourth part discusses the nature of State’s response which is considered in excess in terms of human rights and humanitarian law obligations. These four parts are then followed by a conclusion.

Background

Sikhism is a religion founded by Guru Nanak Dev Ji in the year 1469 in Punjab, a state being shared by both India and Pakistan. Sikhs, the followers of Sikhism played a major role in the Indian Freedom Movement[1] but did not receive much appreciation even though they were promised jobs and a better livelihood in the post-Independence era. The newly framed Indian Constitution’s Article 25 identifies Sikhs as Hindus, which aggrieved the Sikhs even more leading to a lot of resentment against the Indian state. In the 1950s, the linguistic groups across India sought statehood that led to the formation of a State Re-organisation Commission in 1953. The government of India was apprehensive of carving out a Punjabi speaking state as that would also lead to dividing the state on religious lines between Hindus and Sikhs. The hindi newspapers from Jalandhar urged the hindus to exhort hindi as their mother tongue which is why the demand for a separate Punjabi Suba (State) was defeated. The Akali Dal, a political party formed during the Gurudwara Reform Movement in the 1920s, continued their agitation for the creation of a separate Punjabi Suba and it was finally agreed to in 1966. Thus areas in the South of Punjab that spoke the Haryanvi dialect of the hindi language formed a new state of Haryana, the Pahari speaking areas were merged with Himachal Pradesh and the remaining Punjabi speaking area retained the name Punjab with Chandigarh as a Union Territory and as Punjab and Haryana’s common capital.

This linguistic reorganization of the states created a lot of problems. Many of the Punjabi speaking areas were given to the State of Haryana, Chandigarh was made a Union Territory and the joint capital of the States of Punjab and Haryana and the Centre took control over the waters of the rivers of Ravi, Beas and Sutlej and made arbitrary allocation. The Centre even took control over various power and irrigation projects. After the reorganization of the state, Akali Dal gained the majority in the Punjab Assembly elections in 1967 but Punjab saw an unstable government for five long years owing to defection. Later on in 1972 after the Bangladesh’s Liberation War Congress emerged victorious at both the Centre as well as in Punjab. Nevertheless in 1973 the working group of the Akali Dal came with a resolution, which was adopted at Anandpur Sahib and came to be known as Anandpur Sahib Resolution.  It advocated for the federal structure in which the Central Government should actualize the federal concept of India by granting autonomy to the provincial government in all the areas except defence, currency and foreign relations. It was in 1982 that Jarnail Singh Bhindranwale, leader of Damdami Taksal-a Sikh religious organization joined hands with the Akali Dal in order to implement the Anandpur Resolution. Bhindranwale as he was fondly called grew popular amongst the Sikh population of Punjab but notorious with the government. He was even arrested for the murder of Lala Jagat Narain, editor of a popular Hindi daily newspaper who had campaigned against Punjabi being adopted as a medium of instruction in Hindu schools and even urged the hindus to accept Hindi as their mother tongue and reject Punjabi in order to defeat the Anandpur Sahib resolution. However, Bhindranwale was released without being charge sheeted due to lack of evidence. Meanwhile the law and order situation deteriorated in Punjab and there were a number of confrontations between the police, Babbar Khalsa and Dal Khalsa’s army. Later on sometime in 1982, Bhindranwale was invited by Harchand Singh Longowal to take refuge in Guru Nanak Niwas, Golden Temple’s guest house. Bhindranwale then even took charge of the Akal Takht, one of the five Takhts of the Sikh religion also known as the seat of temporal justice, thus becoming the Takht’s Jathedar. He then fortified the Temple with heavy machine guns and sophisticated self-loading rifles were brought in.[2] Though Bhindranwale strongly advocated for the Anandpur Sahib Resolution which mostly focused on the Centre-State relations, greater status to Punjabi and the distribution of the waters of the rivers yet it was mostly seen as a secessionist movement by the Central Government. Indira  Gandhi then ordered the expulsion of Bhindranwale and his army from the Golden Temple Complex. The Indian National Army took charge of the situation and attacked the Golden Temple with tanks and artillery on the 6th of June 1984. Thousands of pilgrims belonging to the Sikh faith had gathered in and around Golden Temple, to mark the martyrdom day of Guru Arjan Dev Ji, the fifth Guru of the Sikhs and also the founder of the Temple since the 3rd of June and though entry to the Temple was permitted but they were not allowed to exit it. The survivors of the attack are of the view that the Army deliberately chose this day to carry out the operation in order to wipe out as many Sikhs as possible. The unarmed civilians were attacked incessantly. Even the Sikh Reference Library, which is located inside the complex, was attacked and ancient scripts and artefacts were looted by the army and loaded in trucks to be taken to Delhi. The operation was considered extremely disproportionate and not at all necessary, as the number of Bhindrawale’s armed forces was extremely small as compared to the collateral damage. The civilians who survived often call it as a conspiracy to kill Sikhs and finish the faith in one go. Though the official number of casualties is reported as a few hundreds but the actual number soar really high. The operation was seen as an attack to crush the Sikh militants out of the Temple, yet the author in this paper tries to equate it with non-international armed conflict in order to trigger the mechanism of international humanitarian law principles, thus making the Indian State responsible under the international law.

Armed Conflict

International humanitarian law (IHL) is a branch of international law that governs the conduct of armed conflict. It applies only to a situation of an armed conflict.[3] Therefore, in order to determine whether IHL applies to a situation of violence it is necessary to first asses whether the situation amounts to an ‘armed conflict’. IHL does not provide for a definition of armed conflict. However, it recognizes two types of armed conflicts: international armed conflicts (IAC) opposing two or more states and non-international armed conflict (NIAC) between governmental forces and non-governmental armed groups, or between such groups only, which was established by the Geneva Conventions of 1949.[4]Prior to the Geneva Conventions of 1949, it was thought that civil conflicts were outside the scope of international law. Since the situation of Operation Bluestar under study resembles a NIAC therefore only the ingredients of a NIAC would be discussed. NIAC can be applied through Common article 3 to the Geneva Conventions, customary IHL and Additional Protocol II (AP II) where ratified.

Common Article 3 applies to “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties“. These include armed conflicts in which one or more non-governmental armed groups are involved. Depending on the situation, hostilities may occur between governmental armed forces and non-governmental armed groups or between such groups only. However, NIAC needs to be distinguished from internal disturbances including isolated and sporadic acts of violence.

AP II on the other hand, applies to armed conflicts “which take place in the territory of aHigh Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over apart of its territory as to enable them to carry out sustained and concerted military operationsand to implement this Protocol”.

This definition is narrower than the notion of NIAC under common Article 3 in two aspects.

Firstly, it introduces a requirement of territorial control, by providing that non-governmental parties must exercise such territorial control “as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.

Secondly, AP II expressly applies only to armed conflicts between State armed forces and dissident armed forces or other organised armed groups. Contrary to common Article 3, the Protocol does not apply to armed conflicts occurring only between non-State armed groups.

In this context, it must be reminded that Additional Protocol II “develops and supplements” common Article 3 “without modifying its existing conditions of application“. This means that this restrictive definition is relevant for the application of Protocol II only, but does not extend to the law of NIAC in general.

The Statute of the International Criminal Court, in its article 8, para. 2 (f), confirms the existence of a definition of a non-international armed conflict not fulfilling the criteria of Protocol II.

Statute of the ICC, art. 8 para. 2 (f): “It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups“.

In order to distinguish an armed conflict, in the meaning of common Article 3, from lessserious forms of violence, such as internal disturbances and tensions, riots or acts ofbanditry, the situation must reach a certain threshold of confrontation. It has been generally accepted that the lower threshold found in Article 1(2) of APII, which excludes internal disturbances and tensions from the definition of NIAC, also applies to common Article 3.

Two criteria are usually used in this regard:

First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.

Second, non-governmental groups involved in the conflict must be considered as “parties to the conflict”, meaning that they possess organized armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations.

As per the ICTY Appeals Chamber in Tadic case, an armed conflict involving non-state groups arises only if the violence is protracted and the non-state groups are organized. From the above discussion it can be made out that the following form the ingredients of a NIAC:

Armed conflict between a State and a non-State actor or between these non-State actors

A modicum of organization of any party to the conflict: According to the ICTY Appeals Chamber in Tadic, an armed conflict involving non-State actors must involve ‘organised armed groups’, that have a clear chain of command. Each group involved in an armed conflict need not be clearly differentiated and defined, as there may be a number of loosely related armed groups involved. The ICTY Trial Chamber has further explained the following as ingredients of organization:

The existence of command structure and disciplinary rules;

Control of a determinative territory;

Access to weapons, equipment and military training;

The ability to define military strategy and use military tactics.

Protracted violence: In the Tadic case, the appeals chamber held that for a NIAC to exist there must be ‘protracted armed violence’ which has been authoritatively repeated in article 8(2) of the Rome Statute of the ICC. Yoram dinstein infers that occasional unrest does not amount to NIAC and that there needs to be a series of ‘isolated and sporadic’ internal disturbances for a NIAC to come into existence. The Inter-American Commission on Human Rights in Juan Carlos Abella v. Argentina concluded that an armed conflict has occurred in Argentina, even though the skirmish lasted for 30 hours in total. But Dinstein does not agree with this decision. However, the IACHR holds that in borderline cases there may be a presumption in favour of the existence of an armed conflict.

Intensity of fighting: This requirement should not be looked at as an alternative to protracted violence. The ICTR Trial Chamber in the Akayesu case had stated that the intensity of hostilities ought to be ascertained ‘on the basis of an objective criteria’. In the aftermath of Tadic, multiple judgments of the ICTY have come up with various indicia in order to assess the intensity of the fighting required in a NIAC. These include: the numbers of casualties, the diffusion of violence over territory; deployment of military units against the insurgents; the types of weapons used; the siege of towns; and the closure of towns.

Application of International Humanitarian Law to The Operation Blue Star

The situation of Punjab was dismissed as a mere law and order situation, which is why the State never became liable under the IHL regime. However, this study aims to analyze the situation in Punjab against the ingredients of the NIAC as many Sikh organizations have had asked for a UN probe in this matter as they regard it as a violation of IHL.

Armed Conflict:The situation in the 1984 attack on Golden Temple involved a confrontation between the Indian Army and the armed men, led by Bhindranwale who had taken refuge inside the Golden Temple Complex. There are documented evidences that show that the attack was conducted in a systematic manner with sophisticated weapons being used by both the sides including anti-rocket launchers, AK-47s etc.

Modicum of Organization:  The non-state actors in this conflict i.e. Bhindranwale and his followers were under the command of Jarnail Singh Bhindranwale. There were also other forces some named and some unnamed one of them being, Babbar Khalsa that had joined hands with the Bhindranwale and were indirectly under his control. Bhindranwala’s force had actually fortified the Golden Temple area with sophisticated weapons. General Kuldip Singh Brar who led the Operation Blue Star had pointed out at the foreign assistance received because of the foreign weapons that were seized from the Bhindranwale’s army during the operation.[5]The Khalsa army, as it was mostly referred to, had received their training under the aegis of Major General Shabeg Singh, an Indian army officer noted for his service in training of Mukti Bahini volunteers during the Bangladesh Liberation War. Major General Shabeg Singh taught the army military tactics, that he had acquired during his service with the Indian Army.From this data it can be made out that the Khalsa army satisfied the ingredients of the modicum of organization given out in the Tadic case that have acquired the status of customary international law.

Protracted Violence: The operation was not a single event of violence but rather one of the major events in order to bring the situation in Punjab under control and to drill fear in the minds of the other Sikh outfits that were said to be leading the secessionist movement.

Intensity of Fighting:The operation was one of the very intense operations in the history of the Indian Army. As mentioned above, the official number of casualties is very low, lying somewhere in a few hundreds but eyewitnesses and the survivors’ account tell a different tale altogether. As per the survivors, the pilgrims were being let in the Golden Temple from the 2nd of June 1984 but they were not allowed to leave, which is why the casualties were quite high. Bhindranwale and his army is said to be a few above hundred but the civilians who lost their lives are said to be somewhere above seven thousand. The operation saw a parallel attacks on other gurudwaras in Punjab with the deployment of about 1,00,000 army personnel throughout Punjab. The weapons used on the other hand were highly sophisticated ones. The army even broke the stairs leading to the entrance of the temple to bring in tanks. While Bhindranwale was said to be in possession of foreign weapons including machine guns, anti rocket launchers etc.[6] Most parts of Punjab especially Amritsar were brought under Section 144 of the Criminal Procedure Code (CrPC).

Conclusion

From the analysis made above it can be said that the situation in Punjab was surely not just a law and order situation. It resembles heavily with the ingredients of a non-international armed conflict, thus a deeper study needs to be conducted in order to determine the status of the operation blue star. Sikhs for Justice, a private organization based out of United Kingdom had submitted a memorandum to the United Nations Assistant Secretary for Human Rights calling for the setting up of a tribunal to investigate alleged crimes against the members of the Sikh community during the 1984 Operation Blue Star. It reads that it clearly violated the basic humanitarian law provisions for the protection of the civilian population and for the protection of cultural objects and places of worship as set out in the Geneva conventions.[7] The Sikhs have been awaiting justice for the missing members of their families before and even after the operation, destruction of their holy place of worship, the Sikh Reference Library, the killing of the thousands of the civilians who had gathered inside the Golden Temple just to pay obeisance at the Temple and also for the thousands killed during the anti-Sikh pogrom in Delhi and other parts of India after the assassination of the Indian Prime Minister Indira Gandhi who had ordered the attack at the Golden Temple. Once the Operation is considered a NIAC it would be easy to drag the Indian State to the United Nations and submit her to the jurisdiction of a Tribunal, if it is ever set up.


[1] KS Duggal, “Sikhs in the Freedom Struggle”, Mainstream Weekly, 19 August, 2008 <https://www.mainstreamweekly.net/article891.html>accessed on 21st May, 2020.

[2] Ranbir Sandhu, Sant Jarnail Singh Bhindranwale- Life, Mission and Martyrdom, (Sikh Educational and Religious Foundation, 1997).

[3] Prosecutor v. Dusko Tadic (Appeal Judgment), 15 July 1999, ICTY.

[4]Tadic’s case held that:

…an armed conflict exists wherever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized armed groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring states or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.

[5]General Brar had said this in an interview to the press during the operation.

[6] This was revealed by General Kuldip Singh Brar in an interview during the operation.

[7]“Operation Blue Star: Sikh rights group seeks UN probe”, The Indian Express, June 7, 2017 <http://indianexpress.com/article/world/operation-blue-star-sikh-rights-group-seeks-un-probe-4693609/> accessed on May 21st, 2020.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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