Syed Qamar Afzal Rizvi
TOMORROW, the Prime Minister Imran Khan will address the 75th Anniversary session of the UNGA, thereby raising the Kashmir issue and arguing the need for its peaceful resolution. Volkan Bozkýr of Turkey is the current President of the 75th session of the UN General Assembly. By any reasonable yardstick, the UN’s Charter is the epitome of international law on human rights and the principle of self-determination. Harnessing the UN’s soft power via peace diplomacy yet remains a big challenge for the UN today and tomorrow. Clearly, dismaying to the Kashmiris’ hopes, in the Indian Occupied Kashmir, the UN sorry tale continues.
While drafting the UN 75 declaration on the UN Charter day, 26 June this year, the Secretary General Antonio Guterres remarked, ’The adoption of the Charter of the United Nations was a pivotal and historic moment. The document enshrined a determination to establish a new international order built with the purpose of avoiding a third world war following two such cataclysms that took place within the space of a single generation. Over the past seventy-five years, the Charter has proven to be a solid yet flexible framework. Its ideals have endured, and its legal foundation has progressively adjusted to new situations and needs. Amidst crisis and complexity, the Charter has remained the touchstone we all refer to and rely upon to uphold our shared responsibilities and achieve our global commitments’’.
In the words of the President of the International Court of Justice (ICJ) justice Abdul Qawi Ahmed Yusuf, ‘’Equally important for more than half of humanity, which in 1945 was still suffering from alien subjugation and colonization, was the recognition in the Charter of the principle of equal rights and self-determination of peoples that finally led to their freedom and independence. The universality of the Charter-based system and of international law would not have been realized without the proclamation of the right of all peoples to equality and self-determination. United Nations membership has grown from 50 States at San Francisco to 193 today, mostly as a result of the application of the right of peoples to self-determination. For the past 75 years, the above-mentioned basic norms, together with the others enshrined in the Charter, have fostered peace, progress, human rights protection, the emancipation of peoples and multilateral cooperation throughout the world. They have also furnished the legal framework upon which rests the rules-based multilateral system that enables both States and individuals to engage in cooperative activities across borders in a wide range of fields, ranging from aviation to shipping, from telecommunications to trade, from financial transactions to investment and from health and environmental protection to education and culture’’.
Veritably, Article 1 (2) establishes that one of the main purposes of the United Nations, and thus the Security Council, is to develop friendly international relations based on respect for the “principle of equal rights and self-determination of peoples. The authority of the UN could only be established if all States, or at least a very large, if not overwhelming part of the member states comply with the obligations flowing directly and indirectly from the UN Charter. From the human rights’ perspective, one would say that the main weakness of the UN is that many States, particularly, Israel and India do not care about the recommendations made by both political and expert organs to desist from violating basic human rights and to improve the overall human rights situation.
Needless to say, both India and Israel do not allow special thematic rapporteurs of the UN Human Rights Council to enter their countries. And yet, there are many other states like Myanmar, Mali and Yemen that are not complying with their reporting obligations— under international human rights treaties or with recommendations made by treaty bodies. Although invoking the inherent right of self-defence is pursuant to Article 51 of the UN Charter, the UN Member States do not publicly express their legal views on each and every case may not be interpreted as a new State practice or opinio iuris that might lead to the erosion of Article 2(4) of the Charter. Time and again, we have been emphasizing the importance of a collective response to threats to international peace and security, which must be guided by the rule of law. In this regard, in situations where Security Council action could act to prevent or stop violence, it is the Council’s responsibility to do so. It is why Austria urges Security Council members by supporting the Code of Conduct of the ATC Group to refrain from using the veto to curtail Security Council action where such action could prevent or stop violence or conflict in accordance with the purposes and principles of the Charter.
And most significantly, with a view to replacing aggression with peace diplomacy and cooperation in today’s world affairs, the UN has applied both the norm and practice of the peaceful settlement of disputes. Article 2 of the Charter lays out the principles under which the UN and its members are required to pursue the aims of Article 1. Article 2 (3) states that ‘all members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.’ As noted by a German jurist Bruno Simma, ‘’the principle of the peaceful settlement of disputes occupies a pivotal position within a world order whose hallmark is the ban on force and coercion.’’ This principle, therefore, creates certain obligations for member states and responsibilities for the UN’s principal organs—UNGA, the UNSC, the ECOSOC, the Trusteeship Council, and the ICJ.
Despite its horrible human rights record, India’s becoming as the non-permanent UNSC member and its entry into the UNHRC is a clear failure of the UN’s system. So far the UN held position — on the Kashmir issue seems based on the outdated principle of uti possidetis — arguing that the UN restrains itself from being a party to self-determination. A UN’s fact-finding Commission on Kashmir is an inevitable need. In this regard, the peaceful settlement of the decades — old Kashmir dispute — a nuclear flashpoint in the South Asian region needs to be resolved via the UNSC’s meaningful role.
—The writer, an independent ‘IR’ researcher-cum-international law analyst based in Pakistan, is member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies, also a member of Washington Foreign Law Society and European Society of International Law.
