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Climate Change, Food Safety and the Global Health: An International Law Perspective

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Worldwide, climate change is already affecting directly and indirectly the agricultural productivity and ecology of some organisms because of changing patterns in crop production, livestock intensification, changing rainfall patterns, increased drought and flooding, and the geographical redistribution of pests and diseases, as well as altering the transport pathways of chemical contaminants.

Consequently, climate change is expected to aggravate feed and food safety problems during all phases of food production and supply. M.C.Tirado, R.  Clarke, L.A.Jaykus, A.McQuatters-Gollop, J.M.Frank stated in their research entitled “Climate change and food safety: A review” published in Food Research International (Vol. 43, Issue 7):

Climate change and variability may have an impact on the occurrence of food safety hazards at various stages of the food chain, from primary production through to consumption. There are multiple pathways through which climate related factors may impact food safety including: changes in temperature and precipitation patterns, increased frequency and intensity of extreme weather events, ocean warming and acidification, and changes in contaminants’ transport pathways among others. Climate change may also affect socio-economic aspects related to food systems such as agriculture, animal production, global trade, demographics and human behavior which all influence food safety.”

As human health inescapably relates to the consumption of safe and sufficient quantity of foods, climate change is expected to have considerable impacts on human health as a consequence of serious food contamination and food scarcity. Food hazards, including germs and chemical contaminants, can enter the food supply at any point from farm to table. Most of these hazards cannot be detected in food when it is purchased or consumed. In addition, consumption of insufficient amount of food due to food scarcity may lead to malnutrition and several foodborne diseases. Therefore, climate change by way of temperature increases, changing patterns in crop production, changes in rainfall patterns, toxic contaminations, food scarcity, increased drought and flooding etc. is resulting in worldwide increased water- and food-borne diseases and malnutrition. M. Herrera, R. Anadón, Shahzad Zafar Iqbal, J. D. Bailly, Agustin Ariño stated in their research entitled  “Climate Change and Food Safety” published in Selamat J., Iqbal S. (eds) Food Safety. Springer, Cham (2016):

Temperature increases and changes in rainfall patterns will have an impact on the persistence and patterns of occurrence of bacteria, viruses, parasites, fungi, and harmful algae and the patterns of their corresponding foodborne diseases and the risk of toxic contamination. Chemical residues of pesticides and veterinary medicines in plant and animal products will be affected by changes in pest pressure.”

Therefore, incidences of water- and food-borne diseases are increasing globally. Water- and food-borne diseases are the result of ingestion of foodstuffs or water contaminated with microorganisms or chemicals, or diseases caused by malnutrition. These diseases encompass abroad spectrum of illnesses causing morbidity and mortality worldwide and their real overall health impact on the world population is yet unknown. Food and Agriculture Organization of the United Nations (“FAO”) stated in its research in 2008 entitled “Climate Change:  Implications for Food Safety”:

Evidence of the impact of climate change on the transmission of food and waterborne diseases comes from a number of sources, e.g. the seasonality of foodborne and diarrhoeal disease, changes in disease patterns that occur as a consequence of temperature, and   associations between increased incidence of food and waterborne illness and severe weather events.”

Following the recurrence of serious events of food contamination and scarcity across the globe, food safety has become a matter of ever increasing international concern and the World Health Organization has defined foodborne diseases as a global public health challenge. Protecting global health from foodborne hazards is a compelling duty and a primary interest of both States and non-State actors; it calls for enhanced proactive cooperation between national and international institutions. Moving from the consideration that food safety issues and the enhancement of health security are of growing international concern, it is interesting to inquire whether the international community is provided with the appropriate legal instruments to face foodborne hazards globally. Unfortunately, the present state of international law on food safety regulation and governance is still unsatisfactory and reforms are desirable in many respects.

The “Right to Safe and Sufficient Food” in International Law

For the reasons stated above, international food safety is perceived as a global challenge. In the wake of a trend towards more efficient food safety policies, the 2007 Beijing Declaration on Food Safety gives voice to the global community’s concern that a comprehensive and integrated approach be adopted, prompting all stakeholders to take cooperative and concerted actions and strengthening links between the different sectors involved. The Declaration, in fact, recognizes that “integrated food safety systems are best suited to address potential risks across the entire food-chain from production to consumption” and that “oversight of food safety is an essential public health function that protects consumers from health risks”. In this perspective, it mainly urges States to develop transparent regulation to guarantee safety standards; to ensure adequate and effective enforcement of food safety legislation using risk-based methods; to establish procedures, including tracing and recall systems in conjunction with industry; to rapidly identify, investigate and control food safety incidents and to alert the World Health Organization (WHO) of those events falling under the revised international health regulations. In short, the Declaration expresses the need to understand food safety as both a national and an international responsibility.

Although emphasis is increasingly being placed on the concept of food safety, legal literature has seldom expanded on the status of a “human right to safe food” in international law. The right to safe food in human rights law is encompassed by both the right to health and the right to food. It is so closely interrelated with these fundamental human rights – being at the same time one of their integral components and an element upon which their realization is dependent.

Article 25, paragraph 1, of the Universal Declaration of Human Rights (“UDHR”) affirms that “[e]veryone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services”, while article 12, paragraph 1, of the International Covenant on Economic, Social and Cultural Rights  (“ICESCR”) enunciates the right to health as “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.  In its General Comment No. 14 on the domestic implementation of article 12 of ICESCR, the United Nations Committee on Economic, Social and Cultural Rights (“the Committee”) interprets the right to health, as defined in article 12.1, as “an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and … [a]n adequate supply of safe food” (Comment No. 14, para. 11). As far as legal obligations are concerned, the Committee makes it clear that States Parties are under the obligation to adopt domestic laws aimed to ensure “the underlying determinants of health, such as nutritiously safe food and potable drinking water” (Comment No. 14, para. 36) and to provide for implementation of such legislation.

Moreover, the Committee reiterates the view expressed in General Comment No. 12 that guaranteeing “access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone” is one of the core obligations incumbent upon States Parties to grant satisfaction of minimum essential levels of the right to health. In this context, obligations of immediate effect would encompass the duty to guarantee that all individuals under the jurisdiction of the State have equal access to safe and nutritious food; the duty to enact food safety and consumer protection legislation, including accountability measures; the duty to take all necessary steps to implement international regulations and standards.

In its general comment on the right to adequate food, the Committee underlines that “the right … is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfillment of other human rights enshrined in the International Bill of Human Rights” (Comment No. 12, para. 4). While recognizing that the right to adequate food is crucial for the enjoyment of all rights, the Committee considers that the core content of this right implies “the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances” (Comment No. 12, para. 4).

Moreover, the relevance of food safety to the realization of the right to food both at national and international level is further emphasized by the Committee when it stresses that domestic policies of implementation of article 11 of ICESCR “should address critical issues and measures in regard to all aspects of the food system, including the production, processing, distribution, marketing and consumption of safe food” (Comment No. 12, para. 10), and that States and international organizations have a joint and individual responsibility to ensure that “products included in international food trade or aid programs … be safe” (Comment No. 12, para. 10).

Within the United Nations, the General Assembly has long adopted the same approach as the Committee, in resolution 63/187 of 18 December 2008 on the right to food the Assembly “reaffirms the right of everyone to have access to safe, sufficient and nutritious food, consistent with the right to adequate food and the fundamental right of everyone to be free from hunger”. The Human Rights Council has repeated the same formula in its Resolution No. 7/14 on the right to food of 27 March 2008, the first adopted by the Council so far.

In different contexts, several international declarations and other soft law instruments have reaffirmed the individual right to adequate and safe food. The World Declaration on Nutrition, adopted by the FAO International Conference on Nutrition in December 1992, asserts that “access to nutritionally adequate and safe food is a right of each individual” (para. 1); the 1996 Rome Declaration on World Food Security includes the States’ commitment to “implement policies aimed at eradicating poverty and inequality and improving physical and economic access by all, at all times, to sufficient, nutritionally adequate and safe food and its effective utilization [World Food Summit Plan of Action, para. 21 (b)]” and the Declaration adopted at the FAO World Food Summit: five years later in June 2002 confirms “the right of everyone to have access to safe and nutritious food” (preamble).

From this legal framework it can be inferred that in the human rights perspective it is generally recognized that every individual is entitled to food that is safe and of good quality, since safe food is functional to achieving freedom from hunger and enjoyment of the best attainable state of health; hence it is crucial for protecting life and human dignity. Clarifying whether this entitlement shapes an autonomous right, separate and distinguishable from the rights to adequate food and to health, and whether it can be considered a fundamental human right, will probably be the subject of further insights by future legal scholarship. It is worth considering, however, that food safety has been already defined “an inalienable right of each individual” (WHO Global Strategy for Food Safety: Safer Food for Better Health).

The Need to Move Forward

It is generally acknowledged that due to their transboundary dimension and their potential widespread impact on human health, climate change and food safety challenges demand close international cooperation and global governance. Following in the wake of a clear trend in international law and practice, we are now witnessing the emergence of a general principle on food safety, underpinned by the progressive affirmation of a human right to safe food, which requires that international standards and guidelines be voluntary complied with, legal obligations be fulfilled in good faith and all stakeholders at different levels play their proactive role in enhancing the international community’s preparedness and capacity of response to food safety threats.

It is in fact common view that protecting world health from foodborne illnesses and similar hazards is to be seen as a compelling duty and a primary interest of both States and non-State actors. While food safety governance at the global level calls for multi-sectoral approaches and multi-level cooperation to minimize the effects of food safety related public health events, international law can still count on a limited set of legal instruments.

In fact, in the wake of climate change, the present state of international law on food safety regulation has faults and drawbacks, as authoritatively confirmed by Professor Francis Snyder:

“Food supply insecurity and unsafe food are tolerated, encouraged or even positively promoted by many aspects of current international law. Serious reform is essential if we want to create an international law for (and not just ‘of’) adequate food”.

Therefore, it is to be hoped that the joint efforts of the major international organizations involved at both the universal and the regional level (WHO, FAO, WTO) – which point towards the prospective enhancement of the degree of cooperation among international actors, State authorities and private stakeholders – will succeed in shaping an improved legal framework for food safety governance, which may benefit from the commitment of both international and national institutions. In such an evolving and interdependent scenario, national initiatives concerning targeted domestic legislation can indeed be welcomed as positive steps forward whenever they substantially contribute to realizing the right to safe and adequate food, introduce accountability measures, and strengthen foodborne disease monitoring and surveillance systems.

By focusing only on international law norms and obligations, this essay aims to offer a contribution to the current debate on food safety, with the awareness that it represents only a starting point for further analysis and more in-depth reflections on the innovations and developments needed in food safety regulation to achieve the compelling objective of protecting world health.

Mahmudul Hasan is a recent LL.M. graduate of energy and environmental law and Thomas Buergenthal Fellow at The George Washington University Law School, Washington, D.C.

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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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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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