Connect with us

International Law

Right to self determination – A holistic view



No other concept is as powerful, visceral, emotional, unruly, and as steep in creating aspirations and hopes as self-determination.”-Wolfgang Danspeckgruber

Principle at its outset

[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] P [/yt_dropcap]ublic International Law, which governs the relation inter-alia between two or more states, expressly provides for right to self-determination. The principle is of jus cogens nature, which means that a norm or a principle attaining a status of customary international law against which no derogation is allowed, whatsoever.

The states therefore are under strict obligation to follow this principle. The principle trace its history to the Atlantic Charter, signed on 14 August 1941, by Franklin D. Roosevelt, President of the United States of America, and Winston Churchill, Prime Minister of the United Kingdom, who pledged The Eight Principal points of the Charter, which latter evolved into United Nations Charter, 1945 (Article 1 specifically). The principle, notably, also find its mention in “CASE CONCERNING EAST TIMOR (PORTUGAL v. AUSTRALIA)” before International Court of Justice (hereinafter ICJ), Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States adopted by the UN General Assembly in 1970, Helsinki Final Act adopted by the Conference on Security and Co- operation in Europe in 1975, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, etc.

In common parlance, right to self-determination means a right to choose the political status and pursue its own economic, social, and cultural development, by a population, which belongs to a certain territory, from subjection of alien subjugation, dominion and exploitation, including formation of their own independent state. The right essentially wants to end, as well as, counter the issues of colonial domination, racial or ethnic discrimination, military occupation, etc., due to which a group suffer systematic and gross violations of human rights that make their participation in that state impossible, which were very much prevalent till latter half of 20th century. The principle has two aspects, which are namely internal (right of people to govern themselves without interference of foreign power) and external (right of peoples to determine their own political status and to be free of alien domination). As a result, there could be number of outcomes like independence, merging with some other countries, or remaining within the political domain of same country. However, it should not be confused and correlated with right to secession, as right of secession is not govern under the realm of international law except in context of decolonization and situations of military occupation.

Having this background, I want to move the focus of this article to some important correlation and issues concerning this principle. Article in its essence, deals with an important question that ‘whether this principle need to evolve more, in terms of its specificity’, by detailing out various contours of right to self- determination.

Deconstructing syntax of correlation

Right to self-determination has a critical relation with various other factors, which need to be looked upon, in order to highlight the need for its development.

Relation with territorial sovereignty

General Assembly in its resolution 1514 (XV) of 14 December 1960, titled “Declaration on the Granting of Independence to Colonial Countries and Peoples” states in one of its provision that ‘Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.’ Member states have also been wary about this principle due to its sensibility regarding their territorial integrity; hence this principle has been incorporated in aforementioned declaration. Therefore, bringing a perilous relation amongst each other. As mentioned by Castellino “……but in a debate between territorial sovereignty and right to self-determination, one has to admit the norm of territorial integrity once again prevailed to the gains of peoples due to the envisaged realization of self- determination” (para-phase).

Relation with terrorism

Terrorism has been a global menace which is affecting the world at large. International Convention for the Suppression of the Financing of Terrorism, 1999 defines terrorism as “Any act intended to cause death or serious bodily injury to a civilian, or any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context is to intimidate a population or to compel a government or an international organization to do or abstain from doing any act”. This act is proscribed under various regimes, such as United Nations Security Council Resolution 1373, UK Terrorism Act 2000, US Patriot Act, European Union Common Position on Terrorism, etc. The struggle for independence through self-determination, may often lead to armed conflict. These armed conflicts may turn out to be an act of terrorism, where innocent’s life is put at stake, so as to overawe the government or authority to take such steps, as would lead to self-determination. Therefore, the relation is quite critical, in a sense that, a struggle for self-determination must not lead to perpetrating a bigger crime, which is condemned worldwide. It may vitiate the genuineness of the concerns of a group, which calls for the application of this principle.

Relation with occupation

Article 42 of the Hague Regulations, 1907 states that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” The legality of any particular occupation is regulated by the UN Charter, 1945 and the law known as jus ad bellum. Once a situation exists which factually amounts to an occupation the law of occupation applies – whether or not the occupation is considered lawful. Such authority can govern those territory but without changing the existing order. The occupant powers are never considered as legitimate government, as they overthrow elected regime and in this context the right to self-determination becomes crucial for the native to decide their future. Therefore as far as relation is concern, both run opposite to each other, as this right offers autonomy to the native while military occupation demeans this opportunity.

Relation with Security Council

Security Council constituted under the aegis of United Nations Charter, 1945 is one of a principle organ which has a duty to oversee and monitor international peace and security. It is in this regard Security Council is considered to be a watchdog, for ensuring that any sort of armed conflicts be eliminated. But as mentioned above, in many instances the situation runs contrary to this expectation, which necessarily involves acts of armed conflicts, i.e. either in form of terrorism or military occupation, for the demand of an application of this right. Therefore, the relation between the principle and this organ is of vital nature, because Security Council ought to ensure that the right be exercised systematically and violation of peace and security, in the form of human rights violation or by challenging territorial sovereignty, is eliminated to greater extent.

Various concerns relating to this principle

Notwithstanding that the principle has been incorporated under various charters or convention, as non-derogable norm, it still lacks the definitiveness. These issues put concerns over practical application of this principle in real time problems.

It has been, on number of occasions, alleged that the alien authority changes the structure of inhabitants in an occupied region, by implantation of non-indigenous settler in that land. This erodes the earlier structure which existed before imposition of foreign rule, in that land. Same preposition was argued by Tibetan Centre for Human Rights and Democracy which is based in northern India and was established in 1996, in Asian Civil Society Forum, 2002. The contention is ‘that right to self-determination as a principle does not foresee this problem and as a result it is not incorporated in any charter or convention, which deals with this principle.’ The other example is “Falkland Island’, wherein right to self-determination was exercised and more than 90% people voted for British regime but it was argued by Argentina that locals who voted were from Britain itself and since they don’t constitute aboriginal or inhabitant population of this island, it doesn’t leads to proper implementation of this principle.

Next in the line is an issue concerning determination of subjugation of alien authority or domination and exploitation, which constitute as cause of exercising this principle. The first aspect to it is that ‘how can we determine the subjugation of alien force’. The matter is contentious because no authority, howsoever whimsical, would consent to the fact that it is alien force. They will argue to an extent to prove, that their control have historical significance. These situations are not properly addressed by this principle, as it fails to draw a line between legitimate and illegitimate authority. ‘Kashmir Dispute’ between India and Pakistan, is relevant to be stated in this regard because both exert their influence on this piece of land, by stating that other is an alien authority. This fuels the situation between these nations rather than solving it. The second aspect is ‘who will decide this very question’. Well ICJ (as decided in number of cases) could decide upon it, but jurisdiction of same is subject to the consent of member-states. Therefore creating a vacuum, as to how to deal with these questions.

Last but not the least, if authorities so concern agree to conduct application of this principle, through an election, ‘how will it be ensured that they are conduct in free and fair manner’. It is necessary in that case to mention that just arguing application of this principle would not suffice the dire need for fair election, which has a possibility of any sort of manipulation. It would rather lead to abuse of authority if same is not conducted in free and fair manner. ‘Scotland Independence Referendum’ is one of such example, wherein free and fair elections were held to ensure that whether the people of Scotland wants to be an independent country or remain as part of United Kingdom, in 2014.

These issues raise an important question that whether this principle requires more width, so as to answer those jurisprudential questions relating to its effectiveness in larger sense of this debate.

Conclusion: an inference

One can infer that, despite the principle had attained status of customary international law and more specifically status of jus cogens, does not justify the fact that it doesn’t need to evolve anymore as a principle. Issues concerning displacement of original population, question of historical aspect related to control of an authority, and application of this principle in fair and unbiased manner still haunts the jurist of international law, working in this field. These issues have further implications like human rights violation, grave breaches under International humanitarian law, demilitarization of such areas, etc. which cannot be addressed without answering the above-mentioned concerns.

It could also be inferred that, relation of this principle with various facets of public international law also brings our focus on changing dynamics. The colonization has been outdated as a cause and these days’ military occupation, ethnic discrimination, etc. have taken its toll. But the authenticity of these demands suffers a big blow when correlation is brought with terrorism and territorial integrity. Therefore, it is in these contexts a strong watchdog is required to monitor its implementation and administration, for which the role of Security Council is enhanced and galvanized. But there are other narratives also like human rights, humanitarian aspects (war crime or grave breaches), development issues, etc. which too require a special focus from world community, as well as, respective specialized agency, in context of such territories.

Hence, the principle of right to self-determination does need to evolve further, so that it can cope up with modern-days challenge, as well as, practical realities, as reflected in correlation and issues concerning this principle.

Continue Reading

International Law

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



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.

Continue Reading

International Law

The Hathras Case, Caste Discrimination in India and International Law



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.


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.

Continue Reading

International Law

Intellectual Property on Covid-19 needs to be shared



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’.

Continue Reading