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Opinio Juris: The Missing Link in Trump’s strike on Syria

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[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] O [/yt_dropcap]n 7th April, the United States announced the firing of 59 tomahawk missiles each armed with 1000 pounds of explosives at the Al Shayrat airfield in Syria. The firing which was the first direct attack by the Trump administration against the Assad regime was targeted at Syrian radar equipments, jets, bunkers, fuel sites and other military equipment at the airfield.

According to Syrian officials at least seven people were killed and nine were injured in the attack. The purpose of the use of force according to the United States was as follows:

  1. To deter Syria from using chemical weapons against civilians in the ongoing Civil War in the aftermath of the Khan Sheikoun chemical bombing in the rebel held Idlib province that killed around 80 people including 20 women and 30 children.
  2. To provide an appropriate response in the wake of the ‘international community’ failing to act against Syria.

Syria acknowledged the armed attack on its territory while vehemently denying the use of chemical weapons in Khan Sheikoun in North Western Syria. Syria was joined by Russia which claimed that the use of chemical weapons cannot be attributed to the Syrian government. A week since the attack, the official position of the two counties remains unchanged. Interestingly, the attacks took place while the Organization for the Prohibition of Chemical Weapons (OPCW), the implementing body of the Chemical Weapons Convention (CWC) was in the midst of its fact finding mission regarding the alleged State sponsored chemical attack and was yet to reach an objective determination regarding the veracity of the allegations against Syria. A former CIA official Philip Giraldi questioned the official line of Syria employing chemical weapons as a ‘sham’. Congresswomen Tulsi Gabbard also made a pointed reference to the same. Irrespective of who is involved in the Khan Sheikoun chemical attacks, the US use of force against the Syrian government requires deeper analysis.

While it has been argued that Trump’s strike in Syria, irrespective of its legality has created a new norm in international law since it is evidence of a new State Practice it is argued that it is not the case as it is doubtful whether the United States as a country had the sufficient opinio juris necessary to trigger the emergence of new norm.

Customary International Law (CIL) and the Use of Force

The prohibition on the use of force is a well accepted principle in international law. Article 2 (4) of the United Nations Charter codifies this principle in no uncertain terms. Use of force is permitted only with the authorization of the United Nations Security Council unless it is for the purposes of self-defence within the purposes of Article 51 of the Charter. Article VI Clause 2 of the US Constitution, more famously known as the ‘Supremacy Clause’ stipulates that all treaties made under the authority of the Constitution are part of the Supreme law of the land. Self defence as a ground for the use of force can be pressed into operation only when a State has faced an armed attack or risks an imminent threat of an armed attack. There is near unanimity that the Trump’s administration’s use of force did not fall in this category despite some initial half- hearted attempts to classify the use of force under this head (on the ground that Syria’s use of chemical weapons threatens American interests in the Middle East). The final position of the administration was one of deterrence and response to a humanitarian crisis in the wake of the unprecedented use of chemical weapons by the Assad regime.

This compels one to examine whether a new norm pertaining to the unilateral use of force (without necessarily involving the UNSC) for the purposes of deterring a party from violating the Chemical Weapons Convention (CWC) or reprisal against a State Party which has already violated the Convention (by the alleged use of Chemical weapons against its citizens) has emerged in CIL in the wake of Trump’s strike against Syria.

For a customary norm to emerge in CIL, it is essential that two principal criteria should be satisfied for the same: Firstly, there should be evidence of consistent state practice (which is an objective condition) and secondly, there should be evidence of a belief in the necessity and legality of the action (or omission) concerned. This condition is subjective in nature and is referred to as Opinio Juris sive necessitatis or simply opinio juris.

The latter is to be determined from the conduct of the State and its belief in the legality of its actions. In other words, a state must take recourse to a particular course of action accepting it as law guided by a conviction in the legal and necessary requirement of such action.

While State Practice is comparatively easy to establish, it’s not the case with opinio juris. Opinio juris may in cases be intrinsically bound with State Practice but is widely regarded as an independent second requirement for the emergence of a new customary norm. Past conduct amidst internal debates and controversies surrounding a course of action can be used as a determinant of the necessary opinio juris for a particular conduct.

United States and use of Force

The factual veracity of the chemical attacks alleged against the Syrian government assume significance in this context. Given the admissions by former Secretary of State Colin Powell of being mislead by rogue elements in the CIA with respect to his February 2003 UN Speech regarding Iraq possessing weapons of mass destruction and more recently claims by the Trump campaign that CIA’s assessment of Russia breaking into the mails of the Democratic party being incorrect one can draw a safe conclusion that the intelligence gathering framework of the country is not above suspicion. Since the US invasion of Iraq was based on faulty intelligence, a decision to use force in Syria should have been based on independent impartial international evidence. Trump’s refusal to wait till the OPCW investigation into the veracity of the claims points fingers to the administrations indifference to objective fact finding. This assumes significance since the Assad government continues to deny (rightly or otherwise) the use of chemical weapons. Russia’s unconditional support in this regard bolsters Syria’s claim. Bolivian ambassador to the United Nations Sacha Llorenti Soliz brought this fact to the knowledge of the UN Security Council on the day the US attacks took place. The Powell fiasco aided by a murky intelligence apparatus colour the evidentiary framework for the use of force, especially so when use of force is unilateral. Unilateral use of force in the Jus ad bellum framework requires a greater burden of proof on one exercising such a claim which was not discharged in this case.

Significantly enough, this is not the first instance of chemical warfare by the Syrian government. In August 2013, a Sarin gas attack was launched by the Assad government in Ghouta resulting in the deaths of around 1400 people. While the latest chemical attack took less than 100 lives, the previous attack which had many more causalities did not provoke a military response from the US. In fact, attempts to secure the permission of the Congress failed to evoke a positive response compelling the Obama administration to abandon the idea. Instead, the administration found common cause with Putin in goading Syria to join the Chemical Weapons Convention (CWC) and a deal under which the latter would be required to dismantle its arsenals of chemical weapons. Interestingly, the Obama negotiated deal required UNSC sanction before Syria is held accountable for any violation. This was the outcome of a belief that treaty violations should necessarily require independent resolution at the hands of the UN without resorting to the unilateral use of force.

While it could be argued, that the Khan Sheikoun incident is the first major violation of the CWC by Syria, the refusal of the Congress and the Obama administration to use force in Syria in August 2013 is evidence of a belief that armed response is not necessarily the appropriate response to a humanitarian crisis involving the use of suspect means of warfare. This obviates the contention that there exists a common unanimous line of reasoning in the various branches of the US government as regards the country’s approach to Jus in bello violations.

While Trumps strike had no backing from the Congress the latter being formally informed of the bombing two days after the eventuality, subsequent voices from the Congress approved the strike. Senior members of the Congress including the likes of Nancy Pelosi were unequivocal in their assertion that any future escalation of the conflict would require authorization of the legislative body. This settles the contention that “one off” strikes by the President create no acceptable precedent regarding use of force and Congress remains the final arbiter in the use of force. This is consistent with Article1 Section 8 Clause 11 of the US Constitution which grants “War Powers” exclusively to the Congress. Even if the President is authorized to undertake limited “one off” strikes, they should be undertaken under appropriate Congressional authorization. Strangely enough, most instances of Presidential use of force by Presidents Bush and Obama (except Libya) were justified under a 2001 Congressional authorization which permitted military use against those who plotted 9/11. Since the 2001 resolution pertained to Al Qaeda, it cannot aid the Trump administration in Syria given the reality that the Al-Nusra Front (the Syrian affiliate of the Al Qaeda) is engaged in efforts to topple Assad. Conflicts between the Congress and the President over the War Powers Resolution are not unknown with President Nixon staunchly opposing attempts by the Congress to legislate on the issue in the wake of the Vietnam War.

Attempts by the Attorney General’s office to carve out a “national interest” exception to the use of force (and readily employed by Obama in Libya) and used earlier in Bosnia and Haiti were premised on the logic that the credibility of the UN and the UNSC would be jeopardized if US does not resort to the use of force. In addition, geographical proximity to the USA was a ground for US “national interest” deployment in Haiti.

The “national interest” logic was employed by the Trump administration in the Syria bombing without any explanation as to how they correspond to US State practice in Bosnia, Libya or Haiti to ascertain the development of the necessary opinio juris for the creation of a new norm. Neither is the United Nations protected or UNSC resolutions honoured by US force of force against Syria. On the contrary, it is reasonable to conclude that the unilateral US air strikes have further eroded the credibility of the UNSC and the possibility of a Chapter VII resolution pursuant to an objective determination by the OPCW. The argument advanced by the Trump administration that American interests in the Middle East would be jeopardized if Assad resorts to the use of chemical weapons is a convenient ruse given the fact that Assad seems to have no broader interest other than securing the control of his beleaguered country from the clutches of non state actors who control large swathes of the Syrian landmass.

Scholars have argued that US use of force without UNSC approval had a precedent in the Yugoslav bombings carried out during the Clinton Presidency. However, US took care to ensure that the bombings were a ‘sui generis’ case involving a broader coalition of 19 nations. This implied that the precedent would have a limited ambit. NATO unilateralism was criticized by the then Secretary-General of the United Nations, Kofi Annan. Additionally, there was no fixed pattern for humanitarian intervention conducted by the Clinton administration in general as evidenced from Rwanda’s case where 800000 Rwandans Tutsis and moderate Hutus were killed in a brutal genocide. US was unable to agree on a common framework to the use of force in the African country which cast aspersions on its subsequent eagerness to enter the Balkan conflict.

While attempting to justify humanitarianism in the attack against Syria, Trump referred to the plight of “beautiful babies” losing their lives in the protracted conflict especially so in the wake of the Chemical attack. However, the same administration was the brain behind an executive order that prevented the entry of citizens of seven Muslim majority nations including Syria from entering the United States. Here again there is no consistently displayed by the administration towards Syrian victims of the Civil war displaying the absence of opinio juris in creating a uniform norm of humanitarian conduct.

Tracing the history of US use of force one can observe that there exists no consistent pattern that could prove necessary opinio juris necessary for the creation of a new norm. While State practice pertaining to the use of force has existed, the same has been guided by policy considerations based on political expediency lacking uniformity of approach or consistency of objectives. A conviction in the legality and necessity of certain actions though claimed is negated by diverse situational geo-political considerations regarding the use of force. In line with the ICJ ruling in the North Sea Continental Shelf Case, wherein it was held that frequent and habitual performance of an act is in itself not sufficient to establish the creation of a norm unless there existed a belief in the legal necessity of such conduct; a legal conviction on the use of force for a treaty violation like the CRC is not established by Trump’s unilateral bombing of Syria in light of domestic and international norms of use of force.

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International Law

Is Antarctica the new Eldorado? The sixth continent between claims and international law

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December 1, 2019 marked the 60th anniversary of the signing in Washington of the Antarctic Treaty, the main legal instrument for managing practical activities and regulating interstate relations in the territory 60°parallel South.

On May 2, 1958, the U.S. State Department sent invitations to the governments of Australia, Argentina, Belgium, Chile, France, Japan, Great Britain, New Zealand, Norway, the then South African Union and the USSR for the International Antarctic Conference. It was proposed to convene it in Washington in 1959. The group of participants at the Conference was limited to the countries that had carried out Antarctic projects as part of the International Geophysical Year (IGY) (July 1957-December 1958).

The Soviet Union supported the idea of convening a Conference. In a letter of reply, the Kremlin stressed that the outcome of the Conference should be the International Treaty on Antarctica with the following basic principles: peaceful use of Antarctica with a total ban on military activities in the region and freedom of scientific research and exchange of information between the Parties to the Treaty.

The Soviet government also proposed expanding the group of participants at the Conference to include all parties interested in the issue.

In those years, the international legal resolution of the Antarctic problem had become an urgent task. In the first half of the 20th century, territorial claims to Antarctica had been expressed by Australia, Argentina, Chile, France, Great Britain, New Zealand and Norway.

In response to the Soviet proposal, the United States kept all the territorial claims of various countries on the agenda, but it undertook to freeze them. Russia, however, believed that third parties’ territorial claims had to be denied. At the same time, the position of both States coincided almost entirely insofar as the right to make territorial claims for the ownership of the entire continent could be retained only as pioneers.

The USSR relied on the findings of the expedition by Russian Admiral F.G.Th. von Bellingshausen and his compatriot Captain M.P. Lazarev on the sloops-of-war Vostok and Mirnyj in 1819-1821, while the United States relied on the explorations of N.B. Palmer’s expedition on the sloop Hero in 1820.

The Conference opened on October 15, 1959 in Washington DC. It was attended by delegations from twelve countries that had carried out studies as part of IGY’s programmes in Antarctica.

The Conference ended on December 1, 1959 with the signing of the Antarctic Treaty. This is the main international law instrument governing the planet’s Southern polar region.

The basic principles of the Treaty are the following: peaceful use of the region, as well as broad support for international cooperation and freedom of scientific research. Antarctica has been declared a nuclear-free zone. Previously announced territorial claims in Antarctica have been maintained but frozen and no new territorial claims are to be accepted. The principle of freedom to exchange information and the possibility to inspect the activities of the Parties to the Antarctic Treaty have been proclaimed. The agreement is open to accession by any UN Member State and has no period of validity.

Over time, it has been proposed that the political and legal principles of the Treaty be further developed in the framework of regularly convened consultative meetings. Decisions at these meetings can only be taken by the Parties to the Treaty that have a permanent expedition station in Antarctica.

All decisions are taken exclusively by consensus, in the absence of reasoned objections. The first Antarctic Treaty Consultative Meeting was held in the Australian capital, Canberra, from 10 to 24 July 1961.

Until 1994 (when the 18th Consultative Meeting was held in Kyoto), meetings were held every one or two years, but since the 19th Meeting held in Seoul in 1995 they have begun to be convened on a yearly basis. The most recent Meeting, the 42nd one, was held in Prague from 11 to 19 July 2019. The 43rdConsultative Meeting will be hosted in Paris on 14-24 June, 2021: the suspension of the Meeting that was to be held in Helsinki from 24 May to 5 June 2020 was due to the Covid-19 pandemic. The 17th Meeting was held in Venice, Italy, on November 11-20, 1992.

The main decisions of the Meetings until 1995 were called recommendations and since 1996 ATCM measures. They come into force following the ratification procedure by the Consultative Parties. A total of 198 recommendations and 194 measures have been adopted.

Over sixty years, the number of Parties to the Antarctic Treaty has increased from twelve founders in 1959 to 54 in 2019. These include 29 countries in Europe, nine in Asia, eight in South America, four in North and Central America, three in Oceania and one in Africa.

The number of Consultative Parties to the Treaty that have national expeditions in Antarctica keeps on growing: Australia, Argentina, Belgium, Brazil, Bulgaria, the Czech Republic, Chile, the People’s Republic of China, (South) Korea, Ecuador, Finland, France, Germany, Japan, Great Britain, India, Italy, Norway, New Zealand, the Netherlands, Peru, Poland, Russia, Spain, South Africa, Sweden, Ukraine, Uruguay and the United States of America.

The remaining 25 Antarctic Treaty countries with Non-Consultative Party status are invited to attend relevant meetings, but are not included in the decision-making process.

In the 1970s and 1980s, the desire to join the Treaty was reinforced by the desire of many countries to develop Antarctica’s biological and mineral resources. Growing practical interest in Antarctica and its resources led to the need to adopt additional environmental documents.

During that period, recommendations for the protection of Antarctica’s nature were adopted almost every year at the Consultative Meetings. They served as starting material for the creation of three Conventions, which protect the natural environment: 1) the Convention for the Conservation of Antarctic Seals; 2) the Convention for the Conservation of Antarctic Marine Living Resources; and 3) the Convention for the Regulation of Antarctic Mineral Resources.

Later, based on the recommendations and Conventions adopted, the Protocol on Environmental Protection to the Antarctic Treaty was drafted. It became an environmental part of the Treaty and was signed on October 4, 1991 for a period of 50 years at the Madrid Consultative Meeting – hence it is also called the Madrid Protocol.

According to the Protocol, Antarctica is declared a “natural reserve for peace and science” and should be preserved for future generations. After 1991, the new countries that adhered to the Treaty started to show interest in participating in large-scale international research projects on global climate change and environmental protection.

Considering the above, Antarctica can be described as a global scientific laboratory: there are about 77 stations on the continent, which have supplied their scientists from 29 countries. They explore the continent itself, the patterns of climate change on Earth and the space itself.

However, how did it happen that the territories of the sixth continent became the target of scientists from all over the world?

In 1908, Great Britain announced that Graham Land (the Antarctic peninsula south of Ushuaia) and several islands around Antarctica were under the authority of the Governor of the Falkland/Malvinas Islands (claimed by Argentina). The reason for this was that they were/are close to the archipelago.

Furthermore, Great Britain and the United States preferred not to acknowledge that Antarctica had been discovered by the Russian explorers Bellingshausen and Lazarev. According to their version, the discoverer of the continent was James Cook, who saw the impenetrable sea ice of Antarctica, but at the same time confidently insisted that there was no continent south of the Earth.

A dozen years later, the appetites of the British Empire grew and in 1917 it decided to seize a large sector of Antarctica between 20° and 80°meridian West as far as the South Pole. Six years later, Great Britain added to its ‘possessions’ the territory between 150°meridian East and 160°meridian West, discovered in 1841 by the explorer Capt. J.C. Ross, and assigned it to the administration of its New Zealand’s colony.

The British Dominion of Australia received a “plot of land” between 44° and 160° meridian East in 1933. In turn, France claimed its rights to the area between 136° and 142° meridian East in 1924: that area was discovered in 1840 and named Adélie Land by Capt. J. Dumont d’Urville. Great Britain did not mind, and the Australian sector was not disputed by France.

In 1939, Norway decided to have a piece of the Antarctic pie, declaring that the territory between 20° meridian West and 44° meridian East, namely Queen Maud Land, was its own. In 1940 and 1942, Chile and Argentina entered the dispute and the lands they chose not only partially overlapped, but also invaded Britain’s “Antarctic territories”.

Chile submitted a request for an area between 53° and 90° meridian West; Argentina, for an area between 25° and 74°meridian West. The situation began to heat up.

Furthermore, in 1939, Germany announced the creation of the German Antarctic Sector, namely New Swabia, while Japan also formalised its claims to a substantial area of Antarctic ice.

Again in 1939, for the first time the USSR expressed – as a premise and postulate – that Antarctica belonged to all mankind. After the end of World War II, all legal acts of the Third Reich were abandoned and Japan renounced all its overseas territorial claims under the San Francisco Peace Treaty. According to unofficial Japanese statements, however, the country claims its own technical equipment: according to its own version, the deposits lie so deep that no one except Japan possesses the technology to recover and develop them.

By the middle of the 20th century, disputes over Antarctica became particularly acute: three out of seven countries claiming the lands were unable to divide up the areas by mutual agreement. The situation caused considerable discontent among other States, and hampered scientific research. Hence it came time to implement that idea, the results of which have been outlined above.

In 1998, the Protocol on Environmental Protection was added to the Antarctic Treaty. In 1988, the Convention on the Management of Antarctic Mineral Resources had also be opened for signature, but it did not enter into force due to the refusal of the democratic Australian and French governments to sign it. That Convention, however, enshrined great respect for the environment, which laid the foundations for the Protocol on Environmental Protection. Article 7 of that Protocol prohibits any activity relating to mineral resources in Antarctica other than scientific activity. The duration of the Protocol is set at 50 years, i.e. until 2048.

Most likely, its period of validity will be extended, but we have to be prepared for any development of events. Earth’s resources are inevitably running out and it is much cheaper to extract oil and coal in Antarctica than in space. So an oxymoronically near distant dystopian future awaits us.

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International Law

The Hathras Case, Caste Discrimination in India and International Law

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ILO/A. Khemka

Over six months ago in September 2020, a 19-year-old Dalit woman was brutally gang-raped by the “upper-caste” men in Hathras district of Uttar Pradesh, and a month later succumbed to her injuries in a hospital in Delhi. Despite insidious efforts of impunity by the state, the accused were arrested. However, the family including other Dalits in the village continue to experience the endemic of caste discrimination. The village remains divided along the caste lines with “lower-castes” living on the periphery struggling to fight against the pernicious system.

Caste discrimination and violence emanate from the orthodoxy of the Indian caste system that is held as sacrosanct. It refers to the classification of people into four groups or Varnas: the Brahmins on the top, which consists of priests and teachers, followed by the Kshtriyas or the warriors, the Vaishiyas or the merchants and the last group the Shudras considered as outcastes. Shudras traditionally referred to as ‘untouchables’, now collectively known as Dalitsare singularly positioned at the bottom of the caste hierarchy. They are marginalised on the pretext of maintaining status quo in the society and are forced to live under deplorable conditions with little or no access to health, education and sanitation. Their socio-economic vulnerability and lack of political voice increase their exposure to potentially violent situations while simultaneously reducing their ability to escape.

In the similar vein, the question that writ large is, how long would the scourge of the caste system traumatise the Dalit community that makeup16.2% of India’s total population. Being relegated to the bottom of the class, caste and gender hierarchies, they form a majority of the landless labours and manual scavengers and their vulnerability is appropriated by those in power. The reason why the Hathras Case allured a lot of controversies was that the state agencies played an essential role in shielding perpetrators and launching fake propaganda of victimisation. This reaffirmation of the upper-caste hegemony by the state violates the domestic law as well as India’s obligation under International law. Hence, it becomes imperative to understand the relationship between caste and racial discrimination against the backdrop of international law.

Hathras Case and Violation of International Law

Violence against Dalits especially women  is used as a tool to inflict political lessons and crush dissents and labour movements for transgressing the caste hierarchies. The Hathras Case of Uttar Pradesh is one of such adversities that reveal a perilous side of the Indian social apparatus and the subsequent pattern of impunity. Despite the constitutional guarantee against any form of discrimination specified under the domestic law and the ratification of international covenants on racial discrimination, gender equality and human rights. Such incidents underscore India’s louche stand against discrimination both nationally as well as internationally.

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965 as substantiated by India, under its Article -1 states that discrimination based on descent falls under the ambit of ‘racial discrimination’. Hence, applies to matters of caste discrimination also. In the Case of Hathras, there was a serious breach of the convention on various grounds by the police and the government. For instance, the Police did not take cognisance of the rape for eight days after the incident despite the request of the family and was reluctant to help when the victim was taken to the police-station .The family was also exhorted by the district magistrate to change their statement. This misconduct goes against Article 5(a) and Article 5(b)of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) which reads that victim should receive equal treatment before the organs administrating justice and must receive protection against violence respectively. Also, the lack of effective remedies provided by the state breaches Article 6 of the convention.

Further, the police allegedly cremated the victim without the involvement of her family members. It breached Article 2, para 2 of the CERD, which obligate state parties to take measures for prevention and enjoyment of human rights. The Government and police wrought an abhorrent pattern of impunity and State-sponsored Propaganda as they adamantly declined to accept if rape was actually committed simply based on the fact that the forensic report revealed the absence of semen in the body of the deceased. This was approbated despite the fact that forensic evidence can only be found up to 96 hours after the incident and that sample for the case was collected after eleven days. Thus, such impunity to the ‘upper caste’ men by the state organs seriously violates Article-2 and 4 of CERD that state shall not discriminate against the victim and condemn any sort of propaganda based on superiority of the caste respectively.

Such deleterious conduct by the state is not only in dissonance with the Convention on the Elimination of All Forms of Racial Discrimination but also tramples upon various instruments of International Human Rights Law especially the United Nations Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). It also grossly violates the Convention on the Elimination of All Forms of Discrimination against Women. Dalit Women stand at a point of intersectionality in the society, their subordination and violence unleashed upon them result from both sexual and caste discrimination. Hence, this ‘double jeopardy’ thesis exacerbates their plight.

These actions of the transgression of international law invite state responsibility as codified by the International Law Commission. The Commission elucidates that any such act is attributable to the state if it is committed by State organs, whether central or federal. The International Convention on All the Forms of Racial Discrimination also reflects on the application of domestic law. As Supreme Court of India has held in the case of Karmaa Dojree v. Union of India that the provisions of the Convention are of significance to protect fundamental human rights and must be read into constitutional guarantee against racial discrimination. Thus, what makes the Hathras Case, one of the most controversial cases is the grave violations of international responsibilities and demonstration of ‘upper-class hegemony’ by the state and its agencies.

Caste Discrimination as Racial Discrimination

A major point of contention while ruminating on caste discrimination as racial discrimination is, albeit in the language of international law caste discrimination is seen as the violation of the civil, political, social, economic and cultural rights, there is an absence of its legal recognition.

In 1996, India for the first time highlighted that the term ‘descent’ mentioned under Article 1(1) of the convention does not cover the domain of caste, thus, schedule castes and schedule tribes in India does not come under its purview. However, CERD in its Concluding Observations(2007) stated that the term ‘descent’ not only refers to ‘race’ but also include discrimination against members of community based on various forms of social stratification. The Human Rights Council in its report conducted by the Sub-Commission on the Promotion and Protection of Human Rights (2009) considered caste discrimination as‘ discrimination based on work and descent’. Likewise, the report of the Special Rapporteur on Minority Issues (2016) attempted to explicate caste discrimination and emphasised that ‘while many caste-affected groups may belong to the same larger ethnic, religious or linguistic community, they often share minority like characteristics, particularly their non-dominant and marginalised position and the historic use of the minority like framework to claim their rights.’ This informs us that international law categorically view caste discrimination as a segment of racial discrimination. However, India continues to deny the applicability of the term ‘descent’ as inclusive of caste. The lacuna in the recognition of ‘caste’ as a separate identity and India’s denial despite negation is often considered to have a detrimental impact on a significant population of the country.

Caste- based violence similar to the case of Hathras lead to gross breach of international law and yet less often attract state responsibility. This is due to the fragmented legal response and absence of explicit reference to caste discrimination in international law. It is asserted that a comprehensive legal response could help overcome these challenges, not to say that the application of international law would ensure complete protection against caste-based discrimination and violence. But, at least could provide for international solidarity and subsequently better solutions.

Conclusion

The Hathras case of Uttar Pradesh like other similar cases of violence against Dalit women unveils the perennial notion of caste discrimination and the abhorrent pattern of state impunity to the perpetrators. These acts of caste discrimination are strongly condemned under international law, to which India has often reflected on quite evasively. Notably, various international conventions enunciating international law refers to such discrimination as a violation of human rights, albeit have not specifically mentioned it and has continued to reaffirm that discrimination based on descent includes discrimination based on caste. Hence, Dalits face huge challenges at the international level to draw adequate attention to caste discrimination and consequently bear perpetual atrocities at the national level. Therefore, Dalits aspire for international solidarity to consider varying factors of discrimination and a comprehensive legal response to bring caste-based discrimination into international focus.

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International Law

Intellectual Property on Covid-19 needs to be shared

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The development of Covid-19 vaccine was supposed to be a global good which will be fairly distributed among the developed and the developing world. But the politicization and the increasing nationalization of the vaccine increased the vulnerability of the poor countries to the Covid-19 global pandemic. Everyday tens of millions of people are getting infected and tens of thousands of people died in the developing countries due to this deadly virus. Behind each death, there is a story of a loved one, shattered dream of a family and the increasing human insecurity of the members of the deceased. Against such a backdrop, vaccination to all is necessary to prevent the Covid-19 pandemic.

Ironically, Covid-19 vaccine has become a new frontier of diplomacy, and a new geo-political tool for some rich countries along with a profit-making tool for some capitalist pharmaceutical companies through the monopolization of the vaccine. All people need to be vaccinated to address the devastating impacts of the deadly virus. The recent example of India clearly shows the deadly outcomes of the Covid-19 virus. Bangladesh, which is one of the densely populated countries, can experience the same devastating outcome as India if all people are not vaccinated as early as possible. In fact, in a country like Bangladesh, where more than 165 million people live within 1, 47, 570 km area, maintaining social-distance becomes really a daunting task.

History suggests that mostly the people in the poor countries die when any pandemic emerges as those poor people have always been deprived of the vaccinations. In this context, the WHO Director-General notes that ‘40 years ago, a new virus emerged and sparked a pandemic. Life-saving medicines were developed, but more than a decade passed before the world’s poor got access to them. 12 years ago, a new virus emerged and sparked a pandemic. Life saving vaccines were developed, but by the time the world’s poor got access, the pandemic was over’.

The same history is going to be repeated in the case of Covid-19 vaccine. Ironically, rich countries, i.e. the US, UK, EU, Canada have bought more Covid-19 vaccines than they actually need which is making the availability of the vaccine for the poor countries impossible. For instance, the EU has ordered 1.6 billion doses for its adult population of roughly 375 million. According to the order, even after full vaccinations, there will be a surplus of around 525 million full vaccinations. The UK has ordered 219 million full vaccinations for its 54 million adults while Canada has ordered 188 million full vaccinations for its 32 million adults. It means that for UK, there will be a surplus of 165 million full vaccinations while for Canada there will be a surplus of 156 million full vaccinations. The United States did not export even a single dose of vaccine. In one hand, the rich countries are hoarding the vaccines while the poor countries are dying due to lack of vaccinations. On the other hand, the pharmaceutical companies and the Western vaccine producing countries are against the IP waiver of Covid-19 vaccine which is ironic as it is high time to ensure IP waiver of Covid-19 vaccine to save tens of marginalized, poor people in the developing world. Unfortunately, Bill Gates has said ‘no’ to vaccine production in the developing world. Gates preferred the monopoly of the vaccine which described him as a ‘vaccine monster’(Zaitchik, 2021). It is noted that ‘Gates has chosen to stand with the drug companies and their government patrons’ (Zaitchik, 2021). Dozens of developing countries including Bangladesh, India, South Africa are asking repeatedly for the patent waiver so that they can also produce the vaccine and save their population from the deadly pandemic.

In fact, Covid-19 vaccine developed as a global good to save the humanity from the deadly virus. Thus, the dedication and commitment of the scientists to develop the vaccine needs to be appreciated. But when that vaccine is monopolized for some pharmaceutical companies, there is nothing more ironic than that while people are dying in other parts of the world. What an unfair world it is!

In this critical time of Covid-19 global crisis, no one is safe until everyone is safe. Thus, instead of preserving Covid-19 vaccines, rich countries need to ensure vaccines to all in the world irrespective of nationality, colour, creed, or class. This treatable and preventable disease needs to be prevented which requires strong and definitely humanitarian global political leadership. Thus, IP waiver on Covid-19 vaccine, technological sharing and economic cooperation between the developed and developing world becomes necessary to address this pandemic collectively. As Dr Jeremy Farrar warns (April 28, 2021) that ‘If countries who can afford to share choose not to, this pandemic will drag on, resulting in more deaths, suffering and economic hardship. We’re in danger of creating a fragmented, unequal world of haves and have-nots, where it will be far harder to come together and address the shared challenges of this century’.

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