Jubilant Juba

The new State of South Sudan came into existence on 9 July 2011. Independence of Southern Sudan, with Juba as its capital, is the consequence of a self determination referendum that was outlined in the Comprehensive Peace Agreement (CPA) of 2005 and signed between the Government of Sudan and the South Peoples Liberation Movement (SPLM) representing Southern Sudan. Apart from ending the civil war between North and South Sudan, the CPA provided for Interim National Constitution, Government of National Unity, transition period of seven years, defacto autonomy for South Sudan, incorporated agreements on boundaries, security, and revenue sharing from oil fields in the South. The referendum was conducted in January 2011 in which vast majority of people voted to secede from North Sudan. This brings to the fore significant issues for international law and governance - implications of South Sudan on the right of secession of States under international law; other problems that concerns at the present time is the way Juba manages its boundaries, and conflicts within the region. Juba will have to find a solution to these issues if South Sudan should be secure and prosper. Unless the complementary nature of peace, justice and development is not realized, it is difficult to make progress.

Was it legal for South Sudan to secede from Sudan? Historically secession has been the usual method of State creation particularly in the cases of decolonization. Eminent international law professor James Crawford in his highly acclaimed book “The Creation of States in International Law” lays down the usually accepted viewpoint of international law on secession. He observed that ‘secession is neither legal nor illegal in international law, but a legally neutral act the consequences of which are, or may be regulated internationally’. New problems thrown up by contemporary developments in international law contributed to ambiguity over legality of secession. Of relevance here is the opinion of the International Court of Justice on Kosovo’s unilateral declaration of independence. On July 22, 2010, the Court rendered its nonbinding opinion on the question that was posed to the Court by the General Assembly. The question was as follows: Is the unilateral declaration of independence by the provisional institutions of self-government in Kosovo in compliance with international law? The opinion expressed by the Court was in a way narrow in scope. It held that there was no rule of international law prohibiting the declaration of independence and that in the circumstances Kosovo’s unilateral declaration was not in violation of international law. The World Court, however, gave its ruling on the legality of the unilateral declaration and unequivocally refrained from ruling on the legality of secession itself. ‘In fact, there are conflicting definitions and legal criteria for determining which groups may legitimately claim the right to self-determination, which has, in turn, led to an increase in the number of conflicts within states’, says Louise Arbour, former UN High Commissioner for Human Rights. Although the legal basis for secession is based upon the UN principle of right of self determination, it neither prescribes modalities for making decisions nor would guide the nature of outcome of the envisaged process of secession. In the conduct of international relations, it could be argued that a nation’s history, ideologies and expectations become the source to conceptualize claims of legality and intent of State secession.

It will have to be seen if South Sudan is considered a onetime exception or would set a precedent for secession movements across the world. Amongst other things the African continent is besieged with tensions of disputed boundaries and claims for self determination. Conflicts in the Democratic Republic of Congo, civil war in Chad, violence in Nigeria are few illustrations. It is also feared that groups elsewhere in the world like for example - South Ossetia and Abhkazia will claim secession rights. Although not identical to the current situation but the recent democratic uprisings in the Arab world also have the influence to fuel the moral and material energy of secession movements.

Formation of two independent States will lead to separation of people and division of resources will lead to varied experiences and national sentiment. For now the only thing that should succeed in South Sudan is the political manifesto of the new country that could respect and promote human rights. It might be a challenge for a region embroiled in long and turbulent civil war but hope of return to peace and stability should be the supreme ideal. It should be the uniting factor of South Sudanese national sentiment. The declaration of South Sudan’s independence is an endorsement of a new era in Sudanese politics that should lead to transformation towards rule of law and international juridical norms.

Picture credit: Roberto Schmidt/AFP/Getty Images

Epiphany of the Day

Albert Einstein on Education:

Humiliation and mental oppression by ignorant and selfish teachers wreak havoc in the youthful mind that can never be undone and often exert a baleful influence in later life.

Never regard your study as a duty, but as the enviable opportunity to learn to know the liberating influence of beauty in the realm of the spirit for your own personal joy and to the profit of the community to which your later work belongs.

Richard Falk: A Key Thinker in International Law

I found this very interesting presentation by Professor Richard Falk on International Law and the Changing nature of Security at the University of California, Santa Barbara. This presentation was organised by the Nuclear Age Peace Foundation on 25 October 2002 . Prof Richard Falk discusses the origin of modern state and issues relating to maintanance of internal order and security amidst the rise of non-state actors and terrorist groups posing threat to sovereign States.



It is not an overstatement when Martin Griffiths in Fifty Key Thinkers in International Relations (Routledge, 1999) says that Falk has demonstrated the importance of international law in the study of international relations, not merely as a static body of rules, but as crucial and dynamic instrument of social change.

Renewing the Conventions

My column in the Indian Express on 13 August 2009:

It is necessary, in regard to any war, to consider not its paper justification in past agreements, but its real justification in the balance of good which it is to bring to mankind,” observed Bertrand Russell in his seminal 1915 essay on “The Ethics of War”. August 12, 2009 marks the 60th anniversary of the Geneva Conventions; respect for Russell’s axiom remains central in international humanitarian law.
In practice that means endorsing these values: minimising suffering of individuals and limiting methods of warfare. The four Geneva Conventions — dealing with protection of the wounded, of sick soldiers on land, shipwrecked military personnel at sea, and of prisoners of war and civilians — were signed in the Alabama room of Geneva’s town hall that August day and have since been adopted by 194 nations.
But the nature of the problems they are meant to address has changed. Post the Cold War, the number of internal conflicts resulting in civilian casualties has skyrocketed. According to the Stockholm International Peace Research Institute, 2008 saw 16 major armed conflicts; most were largely internal. They claimed the lives of millions of civilians, both due to targeted attacks and as collateral effects of attacks on legitimate military targets. Many more were forced to become refugees.
On the eve of the Conventions’ 60th anniversary, the Red Cross conducted thousands of interviews in war-torn countries: Afghanistan, Columbia, the Congo, Georgia, Haiti, Lebanon, Liberia and the Philippines. Their report highlights the disconcerting situation we’re in. Of those surveyed 44 per cent said they had personally experienced armed conflict. The highest figures were in Liberia (96 per cent), Lebanon (75 per cent) and Afghanistan (60 per cent). In Afghanistan, 76 per cent of those who had personal experience of armed conflict said they were forced to leave their homes, while 61 per cent said they had lost contact with a close relative. In Liberia, 90 per cent of the people said they had been displaced, followed by 58 per cent in Congo and 61 per cent in Lebanon.
The UN Assistance Mission in Afghanistan recorded over 1,445 civilian casualties in 2008; the early-January Israeli offensive in Gaza resulted in a high number of casualties, particularly among children; media reports suggest that more than 20,000 civilians may have been killed in Sri Lanka recently. And these numbers do not include deaths that came after, but because of, the war — from disease, malnutrition, lack of access to water and sanitation. Add them in, and the total is staggering. But why is this tragedy a matter for international law? Because many of these instances represent glaring violations of Geneva Convention IV and Additional Protocol I, dealing with the protection of civilians in armed conflicts.
That topic, of protection of civilians in armed conflicts, was placed at the top of the agenda of the Security Council 10 years ago. The recent UN report on the subject (S/2009/277) emphasises the need to further strengthen the civilian protections, as actions on the ground have not yet matched the development of international norms and standards. But the need to strengthen protection further is essentially due to the changing nature of conflicts, from “conventional” warfare to low-intensity conflict — including guerrilla tactics adopted particularly by non-state actors — and the revolution in military affairs in the wake of technological change.
The proliferation of non-state armed groups, and the consequent asymmetric warfare in Afghanistan, Iraq, Pakistan and Somalia, is now well understood; what is missed is that it means civilians are even more unprotected than earlier.
The secretary-general’s report to the Council enlists five core challenges: enhancing compliance with international law; enhancing compliance by non-state armed groups; enhancing protection through effective UN peacekeeping; enhancing humanitarian access; and enhancing accountability for violations. These can be effectively addressed only with comprehensive action from institutions involved in humanitarian protection.
One such, the Office for the Coordination of Humanitarian Affairs, in a 2009 aide-memoire lists a number of objectives for civilian protection: humanitarian access to a vulnerable population, measures against forced displacement, reduction of small arms and removal of explosive remnants of war, including cluster munitions. These are the steps that the Security Council and international organisations must now move forward on, to keep the spirit of Geneva alive. Without them, the protections of the Geneva Conventions in contemporary armed conflicts will not be as far-reaching as originally envisaged.

Point of Departure

My letter to the editor (in the context of G20 summit), Indian Express, 3 April 2009:

Given the seriousness of the global economic crisis, G-20 members must try and agree upon reform of the IMF by focusing on issues like legitimacy and scope of the financial institution. This is possible by amending the legal basis of the IMF to meet the changing requirements of the institution. Although the primary purpose of the financial institution is to ensure the stability of the international monetary system but over the years it is also providing technical assistance and training to help countries build the expertise and institutions they need for economic stability and growth. Therefore to ensure significant participation by member States of the IMF, it needs a clear mandate, transparency and effective accountability mechanisms.

Epidemic sans frontieres

My Op ed article published in the Indian Express on 24 June 2009:

As of June 17, 88 countries have officially reported 39,620 cases of influenza A (H1N1) infection, also known as swine flu. These include 167 deaths. According to the World Health Organisation (WHO), 44 confirmed cases were reported in India. The global nature of the swine flu situation is clearly alarming for public health officials and policy makers. It is therefore important to know what legal options are available for countries, especially developing countries, to cooperate in combating this virus.
The problem and implications of the spread of diseases globally across international frontiers has not gone unnoticed by the world community. The World Health Assembly, the highest policy-making body of the WHO, is empowered to adopt binding regulations concerning sanitary and quarantine requirements to prevent the international spread of disease. In 1951, WHO adopted International Sanitary Regulations followed by the International Health Regulations (1969). IHR 1969 addressed specific infectious diseases such as cholera, plague and yellow fever. But the rapid emergence of infectious diseases such as the Ebola virus, severe acute respiratory syndrome (SARS), avian influenza and incidents such as the Chernobyl nuclear disaster in 1986 posed a palpable threat to public health and highlighted the inadequacies of the 1969 IHR regulations. A ten-year effort between 1994 and 2005 culminated in the revision of IHR 1969. The new regulations — the international Health Regulations 2005 (IHR 2005) — that have been applied in the aftermath of the swine flu, are binding on WHO member states.
Under the WHO Constitution, regulations are legally binding once they are adopted by the World Health Assembly, which is an annual forum of all member states. In comparison to IHR 1969, the 2005 regulations are broader in scope, defining rights and obligations of states to report public health events to the WHO, and establish procedures to maintain global public health security. For instance, IHR 2005 mandates that any case involving human influenza caused by a new stereotype must be notified by states parties to the WHO, which assesses the threat levels of such cases. The objective is to help the international community in responding to and preventing acute public health risks, both infectious diseases as well as challenges posed by chemical, biological and radiological threats, whether naturally occurring, deliberate or accidental affecting individuals across the world. Thus IHR 2005 serves as a global framework for international cooperation.
On April 25 2009, in response to the swine flu, WHO swung into action. The WHO Director-General, Dr. Margaret Chan, convened an Emergency Committee on swine flu, and based on its advice declared that the outbreak constituted a “public health emergency of international concern” under IHR 2005. It was for the first time that the Director-General invoked the regulations to convene the Emergency Committee. Upon the request of the Director-General, the Emergency Committee provides its views on whether an event constitutes a public health emergency of international concern (PHEIC). A PHEIC is determined to constitute “a public health risk to other states through the international spread of disease and which potentially require a coordinated international response.”
The WHO’s recommendations are not meant to limit countries from tackling swine flu with their own innovative measures. The IHR 2005 does not preclude states parties from implementing measures that achieve a greater level of health protection than the “temporary recommendations” of WHO, provided that such measures are otherwise consistent with the regulations and are neither restrictive of international trade or travel nor intrusive to persons.
The worry that countries might restrict travel while combating swine flu is a very real one. Human rights concerns may arise with the need for interventions like compulsory isolation, quarantine, and treatment, which might infringe on civil and political rights. The IHR 2005 and the International Covenant on Civil and Political Rights recognise the legality of such interventions, provided they are in consonance with certain principles such as a respect for the dignity, human rights and fundamental freedoms of individuals.
IHR 2005 entered into force in India on 8 August 2007. Strengthening national surveillance systems and amendments to the Public Health Act 1925 is important for the implementation of IHR 2005 in India. The National Institute of Communicable Diseases is designated as the national focal point, which should coordinate with local authorities, including civil society organisations . In a federal structure like India where health is a state subject, there is a need for more jurisdictional clarity between various levels of government in responding to public health emergencies.

Protect the diaspora

My op ed article in the Hindustan Times published on 18 December 2008:

In 2000, December 18 was declared International Migrants Day by the United Nations. But eight years on, the UN is still striving to obtain a ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Their Families. There are more than 150 million migrants (workers, refugees, asylum-seekers, permanent immigrants and others) and this convention wants to put an end to the abuses they face, though migrants contribute to the social, political and cultural dimensions of the societies they live in.
The efforts for an international agreement started in 1970 when illegal trafficking of labour came to light. The first World Conference to Combat Racism and Racial Discrimination, held in 1978, recommended the elaboration of a convention for protecting the rights of migrant workers. The convention came into force in 2003. But as of October 2008, only 39 nations have ratified it.
The convention outlines the rights of a migrant worker and provides a set of binding international standards to address the treatment, welfare and human rights of both documented and undocumented migrants as well as the obligations and responsibilities on the part of the sending and receiving States. The Convention defines the term ‘migrant worker’ as “a person who is to be engaged or has been engaged in a remunerated activity in a State of which he or she is not a national”. Some of the rights of migrant workers are: right to life, liberty, protection from collective expulsion and to adequate conditions of work, freedom of movement and residence within the territory of the host county and equal treatment with nationals in respect of protection against dismissal from employment.
Further, the convention imposes a series of obligations on the signatories: promotion of sound, equitable, humane and lawful conditions for the international migration of workers and their family members and establishes rules for migrant workers and for their return to the States of their origin. These requirements include the establishment of policies on migration; the exchange of information with other States parties; the provision of information to employers, workers and their organisations on policies, laws and regulations; and assistance to migrant workers and their families. The convention seeks to put an end to the illegal recruitment and trafficking of migrants and discourages the employment of migrant workers in an irregular or undocumented situation.
However, the convention has failed to gather momentum. Even some of the important migrant-receiving countries in Europe have not signed it. India is also not a party to it though on average 450,000 Indians go abroad annually for employment. It is important to review India’s stand regarding the convention as it can have implications for the security and prosperity of its migrant workers.
The Labour Ministry needs to examine the compatibility of the existing national legislation with the convention to set the stage to becoming a party to the same. But even if there is incompatibility between the national legislation and the convention, it should not stop us from becoming a party. Appropriate national legislation can be drafted upon ratification of the convention. The other reasons for not becoming a party appear to be fear of complications for the State as migration may even create security risks and social friction.

The First Charge

My intuition that something constructive is going to come my way after I return from Europe turned out to be true. It's my intention to take up teaching formally in those disciplines in which I have 'Comparative Advantage'. Now here I am answering the clarion call of my conscience to share the benefit of my knowledge in international law. John Rawls says that "well ordered people have a duty to assist burdened societies" and I felt it's my role as a teacher and a researcher to help the society become well ordered through the medium of teaching and writing. The contributions I make to ignite the young minds of students who are a part of this society will help develop a suitable culture with the main aim of attaining decent institutions for securing human rights and meeting basic needs. My days are packed with lectures about concepts of state sovereignity, prohibition of genocide and crimes against humanity, effectiveness of war crimes tribunals etc. If the criteria of humanitarinan intervention forms one part of my talks, the other part is fulfilled by building bricks for international business transactions and providing a first glance about the WTO as the organisation with the mandate to remove barriers to trade.

All these and many more related to my international law studies and research which require reasoned assesment are giving little mental space to think and write. Neverthless it is a bold challenge and whenever it is possible I would post my writings.

Epiphany:

....Develop mechanisms to promote peace and reduce the risk of war between nations...for the mentality of war breaks down inhibitions and makes men more prone to kill noncombatants as well as enemy's armed forces......

Peter Singer, 'One World: The Ethics of Globalization' (Orient Longman,2004)

Ciao Torino

© City of Turin, Italy.

It has been a long time since I posted a write-up on my blog. I am occupied with many engagements like attending an advanced training program in international trade law at the International Training Center (ITC) of the International Labor Organisation (ILO) in Torino, Italy. I am here starting from the 29th of march 2006 and will be here till the 23rd of june. ITC is the training arm of the ILO, which is a specialised agency of the United Nations. Interestingly it is the only training academy of the United Nations and also houses the United Nations System Staff College (UNSSC), the United Nations Interregional Crime and Justice Research Institute.

Turin (Italian :Torino) is a major industrial city in north-western Italy, located on the west bank of river Po and at the foot of the Alps and hills of Monferrato. It is the capital of Piedmont region of Italy and located in the heart of Europe. Torino is a remarkable city ('Passion Lives Here':philosophy of the city of Torino during the recent winter olympics hosted in february 2006) with so much to offer. I will certainly write more about this place, which is full of passion and excitement and my training center as and when I can.

Arrivederci (See you again) !

A Response to Free Press Debate

I am posting this opinion in response to Ben Macintyre’s “Mullahs versus the Bloggers”. This article was published on 23 December 2005 in the The Times, U.K. It was written in the context of the Iran Government’s intolerant stand on bloggers. Infact this was a timely attempt by Ben to cover the current scenario of repression of freedom of speech and expression and closing down of free press in Iran. Ben writes:

With almost all Iran’s reformist newspapers closed down and many editors imprisoned, blogs offer an opportunity for dissent, discussion and dissemination of ideas that is not available in any other forum. There is wistful yearning in many Iranian blogs, and a persistent vein of anger: “I keep a weblog so that I can breath in this suffocating air,” writes one blogger. “I write so as not be lost in despair.” Blogs by Muslim women are particularly moving in their bitter portrayal of life behind the veil.

The Iranian State has done its utmost to smother the nascent Iranian blogosphere. In 2003 the Government began to take direct action against bloggers — more than 20 have been arrested, on charges ranging from “morality violations” to insulting leaders of the Islamic Republic. One blogger was sentenced to 14 years in prison for “spying and aiding foreign counter-revolutionaries”; in October, Omid Sheikhan was sentenced to a year’s jail and 124 lashes for a weblog featuring satirical political cartoons.

See: http://www.timesonline.co.uk/article/0,,1068-1957461,00.html

Iran, may be the major thrust in Ben's article. Free press is a contentious issue in some other countries also and it is a grim fact. According to a recent Press Release of Reporters Sans Frontieres (RSF):

In 2005, 63 journalists were killed and more than 1300 were physically attacked or threatened. 807 journalists were arrested and 1006 media outlets were censored. At the dawn of New Year 2006, 126 journalists and 70 cyber dissidents were in jail. Some of countries covered by RSF where Internet is under tight control is Tunisia, Turkeministan, Uzbekistan, Vietnam, China, Cuba, Libya, Nepal, North Korea, Saudi Arabia, Belarus, Burma and Maldives.

At the outset I should say that it is a relevant article. Blogging is a fine example of media democratization. It becomes an alternative mode of expression in the absence of a Free Press. It is wise to realize the fact that suppression only leads to more expression and that too in varied forms. In an age when we are exploring the benefits of the extra computing power for harnessing growth and eradicating poverty in the developing countries, it is sad to know of Iran's stand on the issue of blogging. Instead let us focus more on how Internet can be used as a powerful tool of development. To draw from the focus of UN Development Programme and Information and Communications Technology (ICT), ‘[it is widely recognized that] Information and Communications Technology (ICT) is a powerful tool for participating in global markets; promoting political accountability; improving the delivery of basic services and [thus] enhancing local development opportunities’. Considering the advancement of newer interventions in information technology, International Organizations like the UNESCO, the ITU, the WTO, WIPO, UNCITRAL, the World Bank and OECD are all considering complex issues affecting freedom of expression and freedom of the press like intellectual property rights and content regulation. The World Summit on the Information Society(WSIS, Geneva 2003- Tunis 2005) provided an opportunity for the international community to reaffirm its commitment to Universal Declaration of Human Rights.

Many voices of mankind often result in a policy dialogue and free press is a vital component in the deliberation, dissemination, and discussion of such initiatives. This social, cultural, economic and political dialogue is a feed for the policy makers; the Government. After all the functioning of a free press and the right to freedom of speech and expression is intertwined with development. It strengthens the democratic institutions and UN also affirms that ‘No Democratic Society Can Exist Without A Free Press’. The General Assembly declared an annual observance of World Press Freedom Day (3 May) in 1993, but it affirmed press freedom as far back as 1948, when it proclaimed the right to information in article 19 of the Universal Declaration of Human Rights. That article enshrines the individual’s right to freedom of opinion and expression and the free flow of information through any media regardless of frontiers. Therefore Freedom of expression is an inalienable human right, and freedom of the press is an indivisible part and a guarantee of other freedoms. As long as the contents covered by the media are not sacrilegious, unethical or improper, freedom of speech and expression should prevail.

Sir William Blackstone in his Commentaries on the Laws of England (1765) writes:

....The liberty of the press is indeed essential to the nature of a free State; but this consists in laying no previous restraints upon publication, and not in freedon from censure for criminal matter when published. Every freeman has undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.

In a comment contributed to the International Herald Tribune, Joseph Stiglitz who is a Nobel laureate in economics and a Professor at Columbia University and Roumeen Islam, a manager at the World Bank Institute state that “Countries [have] to find ways to develop the incentives, policies, education systems, and technical expertise that will allow them to take advantage of the enormous changes brought by the rapid spread of communications and information technologies”.

Therefore is it not a Universal Responsibility of All Nations to return to free press in an age of Internet, Cyberspace, Digital and Satellite technologies?

Reflection of the Day

We all arrived at that time and day in our lives in an age of internet, where in cyberspace is no more meant only for the scientists, technocrats, software engineers or techno geeks. The following quote is in the context of what positive big difference the extra computing power can bring in our lives.

“Poor people don't create poverty. The more we can use the Internet and the power of entrepreneurship to connect villagers to the rest of the world -- the more we can eliminate their sense of isolation -- the sooner they'll be able to work themselves out of poverty.”

-Muhammad Yunus

Muhammad Yunus is Founder and MD, Grameen Bank, http://www.grameen-info.org/ Dhaka, Bangladesh. He pioneered in business models that combine economic growth with social justice.

Bookmark Bacon

Recently I discovered accidentally a rare oeuvre in a voluntary organization’s kiosk in Dilli Haat. Let me be clear of what I am writing about,it is a collection of Essays written by Sir Francis Bacon. The title of the work is “ The Essays of Bacon”, with an introduction by Geoffrey Grigson. Oxford University published the book in 1937, under the theme ‘The World’s Classics’. Bacon’s ‘Essayes’ were first published in 1597 and revised in 1612 and 1625. Without further speculation I bought this book, a circa 1937 publication.

Goonj, the voluntary organization’s stand from where I bought this book assembles and resells books of all varieties in order to raise funds to support deprived people. In a way it is a small effort to buy what I need and in turn contribute for a noble cause.

Now I have in my study something that I feel is a rare and a treasured possession.

P.S: Visit www.goonj.org to know more about the organization and its efforts in reaching out to the poor and needy. Goonj is an effective channel for disposing off reusable items lying in urban, well-off households.