BALOCHISTAN UNDER SEIGE: A NEED FOR UNITED NATIONS INTERVENTION

Kartikey Vipul Misra

ABSTRACT
Balochistan is one of the four provinces of the Islamic Republic of Pakistan, situated in the southern-western region of the country. The location of Balochistan makes it special as it serves as the channel to the Middle East, Central Asia and the Indian Ocean. Recent discovery of vast fields of natural gas and other valuable minerals have made the province crucial for Pakistan’s economic growth. Despite the fact of being culturally rich and prosperous, Balochistan is Pakistan’s least developed province with high infant mortality rates, poverty, illiteracy and starvation. Since the creation of Pakistan, the province of Balochistan has remained affected with public unrest and political turmoil. Islamabad always disgracefully tries to conceal its unjust and discriminatory policies by blaming the Baloch dissenters. In order to suppress the insurgency, Pakistan state authorities have fuelled ethnic and sectarian violence in the province. Gross Human rights violations and ethnic cleansing in Balochistan have reached such a scale of immensity that it should shake-up the collective conscience of International community. Only an effort by the United Nations to maintain order and peace in the region will be a viable solution to the problem.

This paper intends to offer an understanding of the intricacies with the biggest and the most disadvantaged region of Pakistan. The first part will focus on the problems and unrests in Balochistan. The second part will determine the need for United Nations intervention.

INTRODUCTION
The name Balochistan literally means the ‘The Land of the Baloch’; it is a vast region in South-Asia which comprises of mountains and deserts. It encompasses the Pakistani province of Balochistan, Iranian province of Sistan and Baluchestan, and the southern areas of Afghanistan comprising Nimruz, Helmand and Kandahar provinces.[1] The province of Balochistan is the largest province in Pakistan; it is bordered by Afghanistan in the north, Iran in the south-west and to the south lays the Arabian Sea. Balochistan is blessed with Gold, Copper, coal, natural gas, oil, minerals, and is playing a major role in the economic growth of Pakistan.

Its proximity to the oil tracks in Persian Gulf and the shared border with both Afghanistan and Iran, makes Balochistan crucial not only for Pakistan but for major world powers. However, the prosperous province is quite deprived and undeveloped. The province with the 44% of the country’s landmass and 6.85%[2] of Pakistan’s population is going through socio-political upheavals. The state of Pakistan is violently suppressing the Baloch nationalist movement since three decades.

State’s atrocities have fuelled ethnic and sectarian violence in the province and Baloch nationalism or rather their Right of Self-determination has lead to the rise of insurgency.

Pakistan’s central government singles out its citizens on the basis of region and ethnicity, which has lead to economic disparity and conflict. Balochs blame Pakistan’s central government for the exploitation of resources and for the economic problem in Balochistan. The joint effort by China and Pakistan in the construction of deep-water port at Gwadar aims to exploit the resources and use the geographical location of Balochistan for deriving economic benefits. The CPEC (China Pakistan Economic Corridor) is resented by the Balochs as they claim that the benefit will not flow to them.

Cruel and everlasting military operations, disappearances, ethnic and sectarian violence are depriving the Balochs from their basic human rights. The situation in Balochistan suggests that the state is slowly heading towards anarchy. Constant failure of Pakistan Government’s policy has given birth to multifaceted problems which pose as a threat to the peace in the region. Sadly, Pakistan remains in the state of denial and always blames India and other foreign powers for the crisis in Balochistan. People of Balochistan are living in terrible conditions and yet no International organization has addressed the problem. Before the wound of Balochistan festers it’s time for the United Nations to act and stop the injustice and violence in the province. It is a moral and imperative obligation that must be fulfilled.

The first part will focus on the aspects and causes of the problems and unrests in Balochistan. The second part will establish that there is a need for the United Nations to intervene.

 

PART 1
Province of Balochistan has been tattered by insurgency and political turmoil with ethnic Balochs demanding for independence from Pakistan. The approach of Pakistan government has been tyrannical and it has reached such level of intensity, that it can possibly be argued that the Balochs now have acquired the right to oppose. The issue is multifaceted and it is important to study all the aspects of the problem. The following sub-parts will address some important causes and concerns related to the subject.

A.) HISTORICAL BACKGROUND 
Earlier, Balochistan was divided into four major states: Makran, Kharan, Lasbela and Kalat. [3] , these states were governed by the Khan of Kalat. Two agreements were signed in 1878 and 1939 between the Khan and the British[4]; as a result some parts were given to the British on rent. British occupation of Balochistan was repressive in nature and they exploited the resources of the province. In 1937 Kalat National Party was founded, it struggled for independence from the British.[5]

 

After the creation of Pakistan and the withdrawal of the British, Khan of Kalat and other Baloch feudal lords wanted to establish an Independent Baloch country. Newly formed government of Pakistan tried to convince the Khan to join the State of Pakistan. When the Khan ignored the invitation, Pakistan tried to use its Diplomacy and military. Eventually, Khan of Kalat was forced to sign the document of accession, and Balochistan officially became the part of Pakistan. Many Baloch leaders and people revolted against the accession and series of aggressive protests followed, the rebellion were brutally crushed by the Pakistan army. Many such futile rebellions were launched by Balochs in 1948, 1958, 1962, 1973 and 2002.[6]

 

Though the protests failed yet they managed to ignite a spark of mistrust and insecurity among the Balochs against the Government of Pakistan.

 

B.) RISE OF ETHNIC NATIONALISM 
In the third world countries, ethnic diversity plays a crucial role in socio-political interactions. Ethnic divisions if widened might become the epicenter of major problems. The discriminatory approach of the Pakistani government has lead to the rise of Ethnic nationalism. ‘Ethnic Nationalism refers to the sentiment of belonging to a group identified by ties of ethnicity as well as, or in preference to, those of the Nation-State. Most states are in fact multi-national or multi-ethnic and in this way ethnic-nationalism may simply be seen as recognizing, a fact of political life. On the other hand, it may lead to expressions of irredentism or secession as political goals, in which case it becomes a movement or political tendency’.[7][8] The ethno-nationalism in Balochistan is of the latter type.

 

Pakistan just like any other Asian country has a diverse Diaspora. Sindhis, Pashtuns, Punjabis, Balochs, Kashmiris are some of the prominent ethnic groups of Pakistan[9], and they have different culture, language and customs. Pakistani Nationalism originates from the idea of the ‘Two Nation Theory’, which led to the partition of India on the basis of religion, and it is nothing short of Communalism. The idea advocates for religious homogeneity and supremacy and it’s opposed to any multiplicity. Pakistan government has always tried to impose flawed religious and cultural doctrines on the ethnic diverse society of Pakistan. Ethnic groups have struggled for long against the domination of Urdu and neglect of regional cultural heritage.[10]

 

The Balochs feel left out from the development policies of the government. Despite the fact of being culturally rich and prosperous, Balochistan is Pakistan’s least developed province with high infant mortality rates, poverty, illiteracy and hunger. The agricultural lands are allotted to civil and military bureaucracy in Sindh and Balochistan, which is affecting the agro-based Balochs.[11] Migration from other provinces and influx of Afghan Refugees[12] into Balochistan is also disliked by the locals, as they see it as an attempt to demographically marginalize the ethnic Balochs.

 

Pakistan has always accused Indian government for the troubles in Balochistan. Indian involvement in the Baloch insurgency is unlikely; since it shall affect the gas pipeline project from India to Iran (which has a large Baloch population and insurgency shall be a problem for Iran). The truth is that years of military operations, ill-conceived and discriminatory policies, and poor governance has resulted in extreme underdevelopment of the region.[13]

 

All these facts when put together suggest that the ethnic divide in Balochistan is a fact and lack of government’s will and apathy has pushed the situation to a point where consequences are irreparable.

 

C.) BIASED AND ATROCIOUS POLICIES OF PAKISTAN GOVERNMENT 
Problems in Balochistan are the result of hatred against centralized authoritarian rule and centre’s refusal to respect constitutionally guaranteed provincial autonomy and basic democratic rights. The elites in Islamabad believe in a controlled model of development which is inconsistent with the globally accepted idea of participatory development. The establishment’s version of development with regard to Balochistan emphasizes troop deployments; military cantonments, check posts and policing to suppress the politically sensitive Baloch community.[14] Central government has always mishandled the situation by using improper force to curb dissent which has escalated the crisis.

 

The resource-rich province is today marked by a high rate of poverty, illiteracy, unemployment, and infant and maternal mortality.[15] According to a survey, 52% of people are living below poverty line and half of Balochistan’s population cannot earn even $1.25 per day.[16] Balochistan also has massive unemployment rate 33.4%[17] and appalling literacy rate of 43%.[18] The most devastating outcome of underdevelopment in any society is a high death rate, and Balochistan has the highest infant and maternal mortality ratio in South Asia.[19] These are the consequences of biased and unjust policies of the government.

 

Balochistan has been governed for the benefit of Pakistan and its people have been deprived from their share of development. Following are the examples of some disastrous policies of the Pakistan government:

•      Natural gas reserves were discovered in 1952 at Sui in Balochistan[20]. The discovery was very important for Pakistan’s Economic growth and development. It is currently Pakistan’s biggest gas field[21], and plays a key role in commerce. Sadly, Balochistan was not supplied with the gas till 1986.

•      The policy of ‘One unit’ was adopted in 1954 by the Pakistani government, under which the four provinces of West Pakistan (Punjab, NWFP, Sindh and Balochistan) were merged into one homogenous unit with Lahore as its capital. This scheme was actually adopted to counterbalance the domination of ethnic Bengalis of East Pakistan (now Bangladesh).[22] This policy failed miserably, it was not permissive and was marked with linguistic and ethnic differences. People from Balochistan were not given proper representation and Punjab being the most populous province[23] got most representation as well as attention. Balochs continuously protested against the policy till 1970, when it was ultimately abolished. This period marks the growth of Insurgency and Sectarianism in Pakistan.

•      Balochs feel insecure whenever there is a military coup in Pakistan. Problems intensified when Genral Parvez Musharraf declared and all out war on Balochistan[24], he once said to a Baloch militant: ‘Yow won’t even know what hit you’[25] His aggressive approach and ruthless military operations brought Balochistan to a standstill, and assassinations of many Baloch leaders in military ambush fuelled the agitation against the government.  The only ‘development’ Balochistan witnessed during his regime was the 62% rise in Police stations.[26]

•      Gwadar port is another subject of conflict in the province. The deep water port is of great strategic and economic significance for Pakistan. China-Pakistan ambitious project or

‘China-Pakistan Economic Corridor’ aims to connect Gwadar with Chinese district of Xinjiang. CPEC is expected to attract Foreign Direct Investment which will be beneficial for Pakistan’s economy. The project was expected to bring employment and prosperity in Balochistan but sadly this opportunity was also snatched away from the Balochs.  Punjabis, Pashtuns, Sindhis and Chinese make up the working force in this project. The project is seen by many Balochi nationalists as a classic case of exploiting Balochistan’s wealth. The current rate of influx of Chinese nationals into Balochistan due to CPEC suggests that by 2048, Chinese will outnumber the native Balochs[27]. People of Balochistan are still politically underrepresented and economically discriminated against in their own state. The military influences the political affairs in Pakistan and the coalition governments are weak27 and lack political will.

Exploitation of Balochistan’s resources and faulty political policies suggest the colonial nature of Pakistan government. Though the occupation of Balochistan by Pakistan is not colonial but its presence certainly is.

D.) HUMAN RIGHTS VIOLATION IN BALOCHISTAN
Balochistan is witnessing the worst sort of state terrorism and is slowly heading towards anarchy. Pakistani security establishment pay no heed to the gross human rights violation in military actions. Islamabad has locked up thousands of baloch nationalists, denied positions in the government and the military, assassinated Baloch leaders, funded schools to fuel radical Islamic ideology, and even sponsored Taliban in the general election to oppose Baloch politicians. Pakistan army is involved in organizing death squads, extrajudicial executions, torture, and illegal detentions. According to Baloch Khan, a Baloch nationalist leader, “The Balochs live in a state of war, every day they face injustice. The army and intelligence agents kidnap our young and we know nothing about them for years. We will not accept any offers until we regain control over our land. They burn down our homes and then ask for peace? We aren’t stupid.”[28]

 

Target killings, missing persons, sectarian trouble and dumped corpses have become a daily affair in Balochistan; such is the nefarious face of government authorities. Pakistani security forces are brazenly disappearing, torturing, and often killing people because of suspected ties to the Baloch nationalist movement”[29]. Human Rights Watch report says hundreds in Balochistan province have been dragged from their homes by armed men since 2005[30]. Military’s ‘Kill and Dump’31 policy has resulted in extensive civilian deaths. Three[31] mass graves were discovered in 2014 in Khuzdar and the provincial government confirmed that 17 bodies were found in these mass graves[32]. Many civilmilitary ambushes have been catastrophic; Army has used heavy artillery and launched air strikes against insurgent bases which lead to heavy civilian causalities. Thousands of people have been displaced from their homes in Balochistan due to violence and insurgency. These people are living in deplorable conditions with no assistance from the government. Pakistan government refuses to officially declare them as IDPs.[33]The government has also denied access to Human rights groups, International media and researchers from conducting study and research in the area[34]. Islamabad denies about the Human Rights violations in the hands of state actors, this attitude has only provided protection to actual miscreants. The government authorities have been often blamed for allowing terror groups such as Lashkar-e-Taiba to operate in Balochistan[35][36].

 

State of Pakistan has failed to protect the citizens of Balochistan and they live in continuous fear of torture, abduction and illegal detentions. Government’s flawed policies have suppressed the Baloch community and have violated their right of speech and expression. Amnesty International’s Pakistan researcher terms Balochistan as a ‘Human rights free zone’, and raises concerns about the actions of Pakistan army[37].

 

PART 2 
Human rights violations and ethnic cleansing in Balochistan have reached such a scale of enormity that it should shake up the collective conscience of the International community. The following sub-parts will establish the grounds on which United Nations should intervene.

A. BREACH   OF    INTERNATIONAL     NORM       BY    PAKISTANI GOVERNMENT
By inflicting atrocities on its own citizens, Pakistan government has violated many

International norms. Brutal military operations, disappearances and ethnic violence are depriving the Balochs from their basic human rights. Government’s apartheid policy has lead to socio-economic degradation of the province with high infant mortality rates, poverty, illiteracy and hunger. Baloch activist Abdul Nawaz Bugti recently urged the United Nations to intervene in Balochistan[38]. Balochs have lost faith in the government and have openly rebelled and the state is slowly heading towards anarchy. Naela Qadri, a prominent Baloch leader said, “Pakistan has imposed war on Balochistan, and Human Rights violations in the region have reached the level of genocide”[39].

 

Pakistan has failed to protect the rights of its own citizens. People of Balochistan are living in terrible conditions and yet no International organization has addressed the problem.

 

B. THREAT TO WORLD PEACE 
Balochistan lies in a central position, at the crossroads of two “axes”, east-west and north-south, of three macro-regions: Asia, Africa and the Mediterranean basin. It is, in fact, at one and the same time (a) the hinge between the Indian subcontinent, Central Asia and the Euro-Asiatic steppes and the Iranian plateau; (b) the link between those regions which give on to – or gravitate towards – the Indian Ocean and its two western “sea routes”, namely, the Persian Gulf and the Red Sea. For this reason, it is still of vital importance from a geo-strategic and geo-economic point of view[40]. The province also borders two very significant strategic countries of Afghanistan and Iran, any sociopolitical turmoil in Balochistan will directly affect the security of both countries which might spark a major conflict in the region.

 

Sadly, Pakistan remains in the state of denial and always blames India and other foreign powers for the crisis in Balochistan. On the other hand, China having its economic and strategic interests at stake supports Pakistan on the issue. Now when there are nuclear powers involved, one can imagine the gravity of the situation and the threat it poses to the world.

 

The UN has the primary responsibility for maintaining international peace and security. It is internationally recognised that certain Human rights are to be protected no matter what. Gross violations of human rights are considered to be a potential threat to the international peace and security within Article 39 of the Charter of the United Nations[41]. Before the issue of Balochistan aggravates, it’s high time for the United Nations to act and avoid any future conflict.

 

CONCLUSION
Examining the gravity of the situation and the reluctance of Pakistan’s government in resolving the issue, an intervention by the United Nations is the only existing valid alternative. United Nations should impose Economic and Non-Economic sanctions on Pakistan for violating the International Law. Economic sanctions like commercial and financial penalties, trade barriers, tariffs and limitations on economic transactions should immediately be imposed. Furthermore, Non-Economic sanctions like isolating Pakistan government by cutting diplomatic ties should be adopted.

Security Council should take action in order to maintain International peace and security under Chapter 7 of UN Charter[42]. Sanction measures, under article 41, encompasses a broad range of enforcement options that do not involve the use of armed force[43]. UN in the past identified serious humanitarian crisis that may have resulted in the disruption of peace and has taken action. Sanctions in Côte d’Ivoire[44], Rwanda[45] Haiti[46], and Sudan[47] are all such cases.

By the imposition of Sanctions, UN should set a precedent that the International community will not tolerate tyranny and Human Rights violations.

 

[1] Akhilesh pillalamarri, ’A Brief History of Blochistan’, The Diplomat, 12 February 2012,   http://thediplomat.com/2016/02/a-brief-history-of-balochistan/  (accessed 2 July 2017)

[2] ‘Pakistan population increased by 46.9% between 1998 and 2011’, The Times of India, 29 March 2012, http://timesofindia.indiatimes.com/world/pakistan/Pak-population-increased-by-46-9-between-1998-and2011/articleshow/12453387.cms (accessed 1 July 2017).
[3] M.A. Kundi, Balochistan: A socio, Cultural and Political Analysis, Quetta, Qasim Printers, 1949
[4] Adnan Adal, ‘Historical background of Baloch National Movement’, Nawa-e-Insan, Vol: 6, issue: 11, January 2006
[5] Martin Axmann, Back to the future: The Khanate of Kalat and the Genesis of Baloch Nationalism, 1915-1955, Oxford University Press, 2008, p.155.
[6] Khuram Iqbal, ‘Pakistan’s Gwadar Port and Singapore: Why Peace in Balochistan is crucial?’, RSIS commentaries, 136/2007,1
[7] Graham Evans and Jeffrey Newnham, the Penguin Dictionary of International Relations, Penguin Books, 1998, p.
[8] .
[9] CIA The World Fact book, South Asia: Pakistan, http://www.cia.gov/library/publications/the-worldfactbook/geos/pk.html (accessed 4 July 2017 )
[10] Feroz Ahmad, Ethnicity and Politics in Pakistan, Oxford University Press, Karachi, 1998, p.15.
[11] Feroz Ahmad, Ethnicity and Politics in Pakistan, Oxford University Press, Karachi, 1998, p. 16.
[12] Umair Jamal, ‘Pakistan’s Balochs Fear Minority Status in Their Own Province’, The Diplomat, 11 February 2016, http://thediplomat.com/2016/02/pakistans-balochs-fear-minority-status-in-their-own-province/ (accessed 2 July 2017).
[13] ‘Balochistan: Myth of Development’, DAWN, 2 November 2008, https://www.dawn.com/news/845263 (accessed 2 July 2017).

[14] ‘Balochistan: myth of development’, Dawn, 2 November 2008, http://www.dawn.com/news/845263/balochistanmyth-of-development (accessed 11 July 2017).
[15] ‘Balochistan: myth of development’, Dawn, 2 November 2008, http://www.dawn.com/news/845263/balochistanmyth-of-development (accessed 11 July 2017).
[16] Sana Samad, ‘Growing Unemployemnt rate in Balochistan’, Daily Balochistan Express, 24 July 2017, http://www.bexpress.com.pk/2016/06/growing-unemplyment-rate-in-balochistan/#  (accessed 24 July 2017).

.
[17] ‘Unemplyment rate in Balochistan’, Dawn, 16 June 2011, http://www.dawn.com/news/637065 (accessed 5 July 2017).
[18] ‘Literacy rate declined in Balochistan Despite Educationl Emergeny’, The Balochistan Point, 15 May 2015, http://thebalochpoint.com/literacy-rate-declined-in-balochistan-despite-educational-emergency/ (accessed 7 July).
[19] ‘Balochistan: Glaring inequalities persist in Pakistan’, Unrepresented Nations and Peoples Organization, 18 April 2008, http:// www.unpo.org/content/view/8039/243/ (accessed 9 July, 2017).
[20] http://en.m.wikipedia.org/wiki/sui_gas_field (accessed 11 July 2017).
[21] Pakistan Petroleum Limited, http://www.ppl.co.pk/content/sui-gas-fiel-overview (accessed 11 July 2017).
[22] Christophe Jaffrelot, The Pakistan paradox, Random House India, 2016. Available from: http//books.google.co.in (accessed 11 July 2017)
[23] http://www.bos.gop.pk/publicationreports (accessed 11 July 2017).
[24] Sananullah Baloch, ‘Remembering Habib Jalib Baloch’, Daily Times, 13 July 2011, http://dailytimes.com.pk/opinion/14-july-11/remembering-habib-jalib-baloch (accessed 11 July 2017)
[25] Pakistan: the worsening conflict in Balochistan, International crisis group, Asia report no. 119
[26] ‘Understanding Balochistan’,Dawn, 23 April 2009, http://www.dawn.com/news/826386 (accessed 24 July 2017)
[27] ‘Chinese to   outnumber Baloch        natives         by       2048,    The    Nation’,      29    December   2016.

http://nation.com.pk/national/29-dec-2016/chinese-to-outnumber-baloch-natives-by-2048 (accessed 14 July 2017) 27 Salman Masood, ‘Major Party walks out of coalition in Pakistan’, The New York Times, 2 January 2011, http://mobile.nytimes.com/2011/01/03/world/asia/03pakistan.html (accessed 6 July 2017)
[28] ‘Balochistn: Pakistan’s other war’, Al Jazeera World, 9 January 2012 http:www.aljazeera.com/programmes/aljazeeraworld/2012/01/2012121372863878.html (accessed 11 July 2017).
[29] Ibid.
[30] ‘Enforced             Disappearances              in       Pakistan       slammed’,       Al       Jazeera,       30       July        2011,

http://www.aljazeera.com/news/asia/2011/07/201172915315663130.html (accessed 11 July 2017)
[31] ‘Pakistan            military’s      kill       and     dump      policy      continues      in      Balochistan      ’,      June       2011,

http://abbugti.wordpress.com/2012/01/06/the-pakistan-militarys-kill-and-dump-policy-cotinues-inBalochistan/ (accessed 12 July 2017).
[32] Malik Siraj Akbar,’The mass Graves of Balochistan’, Huffpost, http://m.huffpost.com/us/emtry/5696642 (accessed 12 July 2017)
[33] N. Jahanzaib, ‘The tragic status of IDPs in Balochistan’, Sharanoff’s Global Views, 18 December 2014, http:www.sharanoffsglobalviews.com/idps-status-balochistan-446/ (accessed 12 July 2017).
[34] ‘Balochistan- A Human Rights free zone’, Dawn, 10 December 2011, http://www.dawn.com/news/679484

(accessed 12 July 2017)
[35] Iaccino L, ‘Quetta Terror Attacks: The growth of Islamic Terrorism in Balochistan’, IBTIMES UK, 25 October 2016, http://www.ibtimes.co.uk/quetta-terror-attacks-growth-islamic-terrorism-balochistan-1588156 (accessed 11 July
[36] )
[37] ‘Balochistan- A Human Rights free zone’, Dawn, 10 December 2011, http://www.dawn.com/news/679484 (accessed 12 July 2017)

[38] ‘Baloch activist demands UN Intervention to stop Pakistan’s atrocities in Balochistan’, Zee News,

http://zeenews.india.com/europe/baloch-activist-demands-un-intervention-to-stop-pakistans-atrocities-inbalochistan-2017432.html , 21 June 2017 (accessed 14 July 2017).
[39] ‘Balochistan Conflict’, Economic Times, 16 August 2016, http://m.economictimes.com/slideshows/nationworld/the-balochitan-conflict-10-key-points/53719728.cms (accessed 12 July 2017).
[40] Valeria F. Piacentini, “Introduction”, in: Riccardo Redaelli, the Father’s Bow: The Khanate of Kalat and British India (19th – 20th Century). Firenze: II Maestrale, 1997, p. 21, cited in Taj Mohammad Breseeg, ‘Baloch Nationalism its Origin and Development’.
[41] Article 39 under Chapter 7 of the UN Charter says “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”
[42] Article 41 under Chapter 7 of the UN Charter defines Sanctions, “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”
[43] ‘Sanctions’, http://www.un.org/sc/suborg/en/sanctions/information (accessed 15 July 2017).
[44] ‘Security Council imposes immediate, 13-month arms embargo on côte d’ivoire unanimously adopting resolution 1572’ (2004)  http://www.un.org/press/en/2004/sc8245.doc.htm (accessed 15 July 2017).
[45] https://undocs.org/S/RES/1011(1995) (accessed 15 July 2017).
[46] https://undocs.org/S/RES/841(1993) (accessed 16 July 2017).
[47] ‘Security council declares intention to consider sanctions to obtain Sudan’s full compliance with security, disarmament obligations on Darfur’, 2004,  http://www.un.org/press/en/2004/sc8191.doc.htm (accessed 16 July 2017).

 

Transgender & Human Right

Prof.Sunil kumar

TransgenderDr. C.P. Gupta

 

Introduction

Gender identity is one of the most fundamental aspects of life. The sex of a person is usually assigned at birth and becomes a social and legal fact from there on. However, a relatively small number of people experience problems, with being a member of the sex recorded at birth. This can also be so for intersex persons whose bodies incorporate both or certain aspects of both male and female physiology, and at times their genital anatomy, For others, problems arise because their innate perception of themselves is not in conformity with the sex assigned to them at birth. These persons are referred to as ‘transgender’ or ‘transsexual’ persons. For a long years together, there has been a controversy regarding the recognition of the transgender people in the society. They become breathless under the cover of a conflict between man and woman. The recent judgment of the Indian Supreme Court pronounced on 15th April 2014 had thrown water on the fire of the long debated controversy all over the world on the rights of the transgender. In the absence of any concrete definition of the term, everybody tries to define it according to one’s own perception. Defining the term, the Trans-gender ASIA says, “Trans people are those males or females of any age who are unhappy living in the gender identity ascribed to them at birth. Transgender, transsexual, or Trans persons are people whose psychological sex gender, or sense ‘of their own innate gender identity is different from their physical sexual characteristics.

 

Terminology

The terms third gender and third sex describe individuals who are categorized (by their will or by social consensus) as neither man nor woman, as well as the social category present in those societies who recognize three or more gender. The term “third” is usually understood to mean “other”, some anthropologist and sociologically have described fourth[1]’ fifth[2] even some[3] genders. The concepts of “third”, “fourth” and “some” genders can be, somewhat difficult to understand within Western conceptual categories[4].

Although biology usually determines genetically, whether a humans biological sex is male or female (though intersex people are also born), the state of personally identifying as, or being identifies by society as, belonging to neither the male or female genders is considered relative to term ‘third gender’ in terms of ‘sexual orientation,’ several other scholars, especially the native non-western scholars, consider this as a misrepresentation of ‘third genders.

Trans Gender Culture

To different cultures or individuals, a third gender may represent an intermediate state between man and woman, a state of being both (such as “the spirit of a man in the body of a woman”), the state of being neither (neuter), the ability to cross or swap genders, another

category altogether independent of men and women. This. last definition is favored by those who argue for a strict interpretation of the “third gender” concept. In any case, all of these characterizations are defining gender and not the sex that biology gives to living beings.

The term has been used to describe hijras of India, Bangladesh and Pakistan who have gained legal identity, Fa’afafine of Polynesia, and Sworn, virgins of the Balkans, among others, and is also used by many of such groups and individuals to describe themselves.

Like the hijra, the third gender is in many cultures made up of individuals considered male at the time of birth who take on a feminine gender role or sexual role. In cultures that have not taken on Western heteronomativity, they are usually seen as acceptable sexual partners for male-identifying individuals as long as the latter always maintain the “active” role.

Historical Aspect

Around the world, there have always been people whose gender identity and expression differ from the culture expectation associated with sex were assigned at birth. Some people born in male bodies lived as women, some born in female bodies lived as men, and others identified as a ‘third gender Culture and religion can be key parts of a trans person’s identity. In parts of Asia and the Pacific c, there are traditional terms for trans women, including those who identify as a third gender. Some trans women historically performed specific ceremonial roles.[5] This visibility has continued to the present day.

Africa — meme (for trans women in Namibia) and kuchu (for. trans, lesbian, gay and bisexual people in Uganda)

Asia — kathoey, Poo ying kham phet, and sao phra phet song (Thailand); abang and mak nyah (Malaysia); bin-sing-jan and kwaa-sing-bit (Hong Kong); transpinay (the Philippines); waria (Indonesia); hijra and aravani (India); and meti (Nepal)[6]

Pacific — vakasalewalewa (Fiji), palopa (Papua New Guinea), fa’afafi ne (Samoa, America Samoa and Tokelau) fakaleiti or leiti (the Kingdom. of Tonga), akava’ine (Cook Islands), and fakafi fi ne (Niue island) An estimated 155 of the 400 indigenous societies in North America traditionally had a third (and in many instances a fourth) gender. Two terms used in the past were alyha for trans women and hwame for trans men.[7]

Position of the Transgender in the Society

From time immemorial people belonging to transgender category face a wide variety of discriminatory barriers in enjoying full equality throughout the World. Even sometimes these people face difficulties in meeting their basic needs also like getting a job, housing, or health care or in having their gender identity respected like getting the facility of a public restroom. Throughout their life the transgender people face the worst challenges, regardless of which country they are coming from or situated in. Though the type of challenges vary from country to country due to the difference in political and social environment in that country, but usually the Trans people are on the borders of the society, being the most marginalized ones.

These people do not face only the societal dangers, but also a huge number of other challenges arising due to medical access in the country they live in depending upon the fact that how it legalizes the gender markers in their documents like birth certificates etc. For ex-ample, if a person could not be able to legally change his/her name and gender in the ID book by any means, he! she cannot be able to get employment anywhere. This concludes that in such kinds of situations they will never be able to be employed and will certainly have no income which will ultimately lead to having no livelihood. This is how a transgender is being deprived of his basic citizenship rights.

Progressive Gender Recognition Laws

Principle 3 of the Yogyakarta Principles states that “each person’s self defined gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom” and “no one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity”.[8] Increasingly, countries are responding to calls from trans people, health professionals and human rights bodies to implement human rights-based gender recognition laws.

The Argentinean Gender Identity Law was approved on, 8 May 2012 and camc into force in July 2012. It is the most progressive gender recognition law in the world. The law is ground-breaking because it is framed in terms of human rights, including the right to one’s gender identity[9] The case study at the end of this section discusses the law in more detail.

Since publishing its legal recognition statement in 2010, the WPATH Board has advised courts and governments in Ireland; Ontario, Canada; and South Korea. It has argued for legal gender recognition without requiring a diagnosis, medical treatments or that a trans person has lived for a defined period in their preferred gender role. The WPATH Board’s June 2013 letter to the Irish government explicitly supported the Argentinean gender recognition law.[10]

 

 

United States of America

With a view to ensure equal protection and due process clauses in Article 1 of the U.S. Constitution, that would implicitly include transgender and transsexual persons, as well as any other identifiable group, the Fourteenth Amendment to the U.S. Constitution was made with ratification. As per the Article, deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. Though the Supreme Court has not fully embraced the Amendment’s implications for transgender rights, these clauses will presumably form the basis of future rulings.

Since 2003, pursuant to the landmark ruling of the U.S. Supreme Court in Lawrence v. Texas[11] that made same-sex sexual activity legal in every U.S. state and territory, sexual activity between consenting adults and adolescents of a close age of the same sex has been legal nationwide. In fact, while deciding the case, the Court overturned its previous ruling on the same issue in the 1986 case of Bowers v. Hardwick, where upholding a challenged Georgian statute, it did not find a Constitutional protection of sexual privacy.

Another important issue relating to transgender activists came up before the U.S. Senate in November 2013, when the Senate approved the Employment Non-Discrimination Act, which would ban workplace discrimination on the basis of gender identity as well as sexual orientation.

United Kingdom

The UK is having a number of legislations to protect the rights of the transgender people as follows-

  • The Sex Discrimination Act 1975 makes it unlawful to discriminate on the ground of sex in employment, education and the provision of housing, goods, facilities and services.
  • The Sex Discrimination (Gender Reassignment) Regulations 1999 extended the Sex Discrimination Act to make it unlawful to discriminate on grounds of gender reassignment, but only in the areas of employment and vocational training. These Regulations do not apply to discrimination in education or in the provision of housing, goods, facilities and services.
  • The Gender Recognition Act, 2004 gives legal recognition to Gender Recognition Panel is successful, the transsexual person’s gender becomes for all purposes the acquired gender and they will receive a full gender recognition certificate (GRC). The GRC allows for the creation of a modified birth certificate reflecting the holder’s new gender.
  • The Equality Act 2006 introduced the Gender Equality Duty, which places an obligation on public bodies to pay due regard to the need to address and eliminate the unlawful discrimination and harassment of transsexual people in employment, related fields and vocational training (including further and higher education) and in the provision of goods, facilities and services.
  • The Sex Discrimination (Amendment of Legislation) Regulations, 2008 has extended the Sex Discrimination Act to make it unlawful to discriminate on grounds of gender reassignment in the provision of goods, facilities and services as well as in employment and vocational training.

With a view to make transgender equality a reality, the present Government is seriously looking for, thus in March 2011, the Government published ‘Working for Lesbian, Gay, Bisexual and Transgender Equality: Moving Forward’, which included Government’s commitments to tear down barriers and advance equal opportunities for lesbian, gay, bisexual and transgender people in all areas of society — including in schools, at workplace and in healthcare.

Germany

Providing solution to a long debated question, Germany became the flu St European country to officially recognize a “third gender” category on birth certificates for intersex infants Previously, German parents had just a week’s time to decide whether their intersex children were male or female, and register them appropriately at the registry office This resulted heavy pressure on the parents to take decisions, which often made them in a state of panic and fiequently lead to forced medical operations in the genital area. Thankfully, on 1st November, 2013, Germany became the first country in Europe as well as one of the firstr countries in the world to allow the parents of babies without “clear gender-determining physical characteristics, parents can now mark their birth certificates with, an “X”, for undetermined gender.

Proceeding further, the new law also gives right to the intersex children to decide their gender identity once they reach an adult age, and not to be labeled male or female at birth without their will. This law is definitely a step towards a new horizon.

Pakistain

In 2009 the Supreme Court of Pakistan ordered the government to conduct a census of hijras living in the country. Earlier that year, local police had allegedly attacked, Robbed and raped eight hijra wedding dancers near Islamabad. That traumatic event led Muhammed Aslam Khaki, a lawyer specializing in Islamic law, to file a private case in the country’s Supreme Court, asking to recognize hijras as a third gender. At the end of 2009 the chief justice of Pakistan ordered the National Database and Registration Authority to issue national identity cards with a “third gender” category for non-binary citizens.

India

For quite a long period of time, the second populous country of the world, India has recognized the transgender as a separate community, known as ‘Hijras’ as citizens who don’t identify themselves as either male or female term “eunuchs” despite the fact that only few of them are identified as• such. Their status has further been changed in the year 2009, when the Election Commission of India has decided to formally allow for intersex or transgender voters an independent designation which meant that the citizens could choose an “other” category indicating their gender in voter forms. It is pertinent to mention here that now after the recent judgment of the Supreme Court in National Legal Services Authority v. Union of India[12], the transgender are now categorically recognized as third gender having the right to vote, own property, marry and to claim formal identity more meaningfully. The Apex Court even proceeding a further directed both the center and the states to treat the transgender as socially and educationally backward classes of citizens and to ensure that they are not discriminated against in obtaining basic needs like health care, employment and education.

 

Conclusion

The aim of the paper is to understand the, the law related to the trans people in different parts of the world . What measures are taken by the government and judiciary of the different countries and understand the human rights issue that the trans people are facing and the priority action required to secure trans people right to dignity, equality, health ‘and security.

We all are humans and the transgender are born in our own society by us only so why people discriminate them and don’t provide equal opportunity like they treat normal gender people, now this is the time for world to look them in different way. The most important point to be considered by every human being is that the transgender people are not like this by their choice, rather it is due to their physical structure by birth which they cannot change. It is thus a matter of concern for all, to regard them with dignity with all rights which being human everybody is entitled to enjoy.

 

[1] Ros case will (2000) changing once : third and forth genders in native North America. Palgrave Machillcan (Jene 2006) ISBN 0-312-22479-6

[2] ab Grabanh Sharyas (2001), sulawesil’s fifth gender inside Indonesia April-Juen 2001

[3] a b Martin M. Maj & Voorhises Barbara (1975)

[4] Mc Gee. R.Jon Richard L. Wasm 2011, Anthropological Theory : An Introductory history New York, Mc Graw Hill

[5] Some indigenaus culture allocated specific role to gender diverse people something recognizing then as a link between the spiritual and the physical word for e.g. there are anerdotal allount that whah (indigenous maari trans women) in Newzeland historically were the only the group allined to touch the food given to tohinga (spissitual healers); sance personal communication with Sellna Patrika, March 2009

[6] Balzers, C and hutta (2012) Transrespect vensus transphobia world wide A comparative review of human right situation of gender variation trans people, W T Publication series, Vol. 6 P. 80 published 14 Oct.

[7] See the Pacific Sexual Diversity Network website : http://psdnetwork.org

[8] International commission of jurist (2007) pp. 11-12

[9] The gender identity and health comprehensive care for transgender people Act. Art. 1

[10] WPATH Presidents August 2013 monthly note accessed 4 July 2014 at www.wpath.org

[11] John geddes Lawrence & Tyron Granes V. Sexas 539. u.s. 558

[12] Writ Petition (civil) No 400 of 2012