The new article of the Charter of the UN “The rights of the nations, national and ethnic minorities for self-determination”, will allow, by vote of the population of regions of the countries under control of the UN, to gain independence for not gained independence nations at the level of the sovereign state, and for the gained independence nations at the level of autonomous regions – states, at the international organization UN.
As show events on time in the world, two options for achievement of level of the national self-determination are noted, in my opinion:
the first option – democratic and peace, by vote of the population with their compact accommodation in the concrete region of the country with participation of the UN, and
the second option – authoritative and aggressive that allows emergence in the states to separatism of nationalistically oriented citizens of the population with their compact accommodation in regions at the level of the open or hidden connivance of external interested countries to these regions.
So, in my opinion, the new article “The Rights of the nations, national and ethnic minorities on self-determination ” of the Charter of the UN has to consist of three parts for national self-determination of the population of the countries of the world:
the first part of article is for the nations, national and ethnic minorities which historically live compactly in certain regions of foreign sovereign states, without having at the same time national self-determination at the level of the sovereign state in the world and as a part of the UN;
the second part of article is for national and ethnic minorities which historically live compactly in regions of foreign sovereign states, but having at the same time in the world, outside not adjacent borders of the country of the accommodation, the nation sovereign state as a part of the UN and
the third part of article is for the nations which for centuries live compactly in historical lawful territories in adjacent borders of two-three sovereign states, but at the same time historically were the divided adjacent borders of the countries on two-three parts.
Development the new article of the Charter of the UN from legal side belongs to foreign affairs specialists-lawyers of the UN, which have to define fundamental sensible decisions about mention the rights on the basis of rules of international law. At the same time, lawyers of the UN, on the one hand, should not rely on the interests of conflicting parties in the region. On the other hand, lawyers also have to exclude in the new article of the Carter of the UN the geopolitical and geostrategic interests of major powers and countries in these regions and beyond their limits. Whether the UN as historically vital step of the international organization will go to it, it is already other party of a medal. As axiom, it is explained that new article in the Charter of the UN will remake territorially borders of all countries of the world without exception. And it, in turn, will exclude imperial manners of powers and countries of the world with emergence of world wars. And therefore, participation of all member countries of the UN in vote of the new article, but not members of the UNSC with their veto, as a rule, for this discussion is necessary.
In the first part of article – the UN develops all principles of creation of the new, but not repeating, national states with their democratic structures for the nations, nationals and ethnic minorities which are compactly living for centuries in the region on the historically lawful lands, but not having at the same time national self-determination at the level of the state in the world. At the same time peace process of emergence of the new national state has to take place step by step in the following ways on a basis:
1. universal ballot under control of the UN of all population living in this region of the country, but not separately taken its nation, for national self-determination at the level of the only state for this nation in borders of the historical territory of their accommodation;
2. build in the region of democratic structures and institutes with human rights and rule of the uniform Law, and
3. for the purpose of achievement of painless process of their exit of management of this sovereign state and not a rupture of the connection established them in market economy about the country to provide to regions time in 5-10 years for a smooth exit to the level of self-government of the sovereign state.
Kurds in Iraq, Tibetans in the Tibetan autonomous region of China, Basra in Spain, Chechens, Bashkirs, Tatars in Russia and others can be examples of the nations for this case. And what earlier, in the spirit of the times, there will be this democratically peace process, thereby, on the one hand, will win more those states in the territory of which there is this process at their close market interlacing.
On the other hand, will win all mankind with emergence on the world scene of the new, not repeating nation states with the rich national traditions, stories, culture, customs and religions. But the most important the fact that process of peaceful formation of the new states in regions of the countries will eliminate regional wars and the criminally centers on an international basis in territories of their accommodation. And it will exclude bloodshed of the people of these regions at emergence of the new state.
Striking examples told are emergence of 15 new states from former imperial the USSR and also the Czech Republic, Slovakia and the republics of the former Yugoslavia. However, they arose spontaneously, as led to a rupture of their market on the basis of their vertical structure. As result – full collapse of their economy with emergent of the new states.
Today some regions of the countries of the world also wish to gain independence at the level of the new national state in which basis either their rich economic budget, or religious motive lies.
Rich regions of such countries as Great Britain, the USA, Spain, Italy, Russia and other advanced countries can be examples. Regions of the countries of the Middle East and Africa can be examples of religious motive.
The second part of the article “The Rights of the Nations for Self-determination” of the Charter of the UN develops rules of uniform approach for national and ethnic minorities which at will of fate of historical events in the past live compactly in regions of others countries, however at the same time have no adjacent borders with their family in the world gained independence national states at the level of the UN.
For example, Jews, Chinese, Armenians, Mexicans and others in the USA; Armenians in France, in Russia, Azerbaijan and so on. In this case, for the purpose of maintaining territorial integrity of borders of the sovereign states fixed UN on which certain part of the territory these minorities compactly live the UN develops the principles of creation of self-government for them at the level of autonomies, as in Denmark, or the state, like in the USA, within territories of their compact accommodation. Besides, process happens according to universal ballot of the population of the region for further accommodation in the territory of this sovereign state which sheltered them and without revision of its borders. At the same time their equal constitutional rights with citizens of this state are created. But for cases of unwillingness of further accommodation in this territory on the basis of results of their vote, the UN is provided rules and conditions of their painless moving from these territories of foreign national states in the territory of the existing their nation states or other countries. It can occur due to monetary compensation to the leaving persons by sides of their states interested in destiny, according to the market of sale and a purchase of the earth and real estate. A striking example is eviction of Jews from the occupied Palestinian earth of Gaza on their home ground of the nation State of Israel with granting housing to them or at will departure to any country of the world.
Otherwise, a paradox of granting the states to these minorities of the rights, at existing in the world of their nation states, can the fact that only in one USA dozens of the states for Japanese, Latin Americans, Chinese, Jews and so on will arise will be. And Armenian ethnic minorities which are compactly living almost worldwide from hundred thousand to one million, for example in California in the USA, in France, in Russia, in Lebanon, in Turkey and in other countries, including also in Nagorno-Karabakh of Azerbaijan, and not having at the same time adjacent borders with their Armenia, will create as a result the largest state in the 21st century on ours to the Planet – the USA*, that is the United States Armenia is improbable. And it is a paradox on time for the three-million population of Armenia, given rise thanks to the October revolution of 1917 by Bolsheviks of Russia. Whereas the Palestinian nation cannot recreate blood of the people self-government at the level of the state since 1948 and is a source of a criminally problem not only in the Middle East, Africa, but already and around the world.
In the third part of the new article of the Charter of the UN, the rule for unity of the divided nation, two-three sovereign states living in adjacent borders on their historical home grounds is developed. In this case, the UN is necessary, on the basis of their universal ballot for association in the uniform nation, to develop ways and conditions of their peaceful painless association and merge of their territories of accommodation. 5-10 years for creation of the uniform nation state with democratic management with preservation of former economic are for this purpose allotted structures.
Examples of this association are already Vietnam, Yemen and there can be in the future reunification of Korea, Ireland, Azerbaijan, also Kosovo with Albania, as the uniform Albanian nation with adjacent borders, but taking into account interests and the rights of the Serbians who are compactly living there with Serbia. Other fresh example it is possible to bring association in the future of the Ossetia people Southern and Northern Ossetia into the uniform state Ossetia. In this case will win, on the one hand, the people uniting in the uniform nation, divided by adjacent borders because of historical events, and, on the other hand, and the states with accommodation of territorially divided nations.
In the absence of the new article the level of the international law from the UN, in my opinion, will be published in the Charter of the UN and the above-stated uniform approaches to these international problems as a paradox, the nations repeating for one and too dozens of the independent states.
And bloody long wars of people of the world, up to world, and existence of the criminally centers will be their investigation as shows time.
The author of article advises the authorities of the countries accepting numerous immigrants not to occupy them compactly on one nation, on the example of Chinese in the Siberian region of Russia that will bring in the future to their rights for repeated national self-government. As an example, Kosovo for Albanians in the presence of their Albania, and Nagorno-Karabakh of Azerbaijan for Armenians at Armenia.
Besides, compact accommodation of immigrants does not allow them on time to be integrated into life of society and into the culture of the hospitable country.
So, the mankind and the UN are faced by a dilemma: to be to the new article “About the Rights of the Nations for Self-determination” in the Charter of the UN for emergence peaceful manners of the new sovereign states, it is concrete for the nations which did not gain independence for today, at the level of disintegration of empires and countries, or to be to wars any level, up to nuclear world, for revival of ancient and modern empires with their colonial manners in the 21st century?
Satya N. Nandan: End of an era for Law of the Sea
The passing away of Amb. Satya N. Nandan of Fijion February 25, 2020 comes as a decisive loss to law of the sea as both a field of academic inquiry and a branch of applied public international law. As a crusader for a global rules based order for the world’s oceans, there are few who have contributed to the practical development and evolution of this field as the iconic Fijian lawyer-diplomat who would hold top positions in the United Nations and man the International Seabed Authority for the better part of its existence. His seminal contribution to Law of the Sea marks him out as a world-renowned practioner in a field that was marked by Westphalian struggles to establish control over the world oceans and the vast resources that lie beneath in the years leading to the adoption of United Nations Convention on the Law of the Sea, 1982 (UNCLOS). His death marks the end of an era for the discipline that continues to evolve based on the provisions of UNCLOS and the untiring efforts of States to strive for a world order based on equity and justice.
Born in 1936 in what was then known as the British Crown Colony of Fiji as the youngest of ten children to Shiu Nandan and Raj Kaur, Satya Nandan after completing his early education in his home country moved to New Zealand to complete his high school education. Pursuant to a law degree from the University of London in 1965, Nandan became a barrister at Lincoln’s Inn before returning to Fiji to start private practice. The newly independent nation would seek his assistance in establishing the country’s mission to the United Nations in 1970 eventually leading to his absorption as a career diplomat in Fiji. From here on Satya Nandan would be the moral and intellectual voice of the Pacific Island States seeking to assert their legitimate claims on ocean resources and championing the codification of what was then regarded as one of the last unregulated frontiers of the global commons. This association with law of the sea and ocean affairs would become a lifetime preoccupation for the rising young lawyer-diplomat.
Amb. Nandan’s most remarkable contribution to law of the sea would be his work as the Rapporteur of the Second Committee of the Conference that dealt with the major issues of law of the sea. The inability of the First and Second Geneva Conventions to iron out contentious issues failed to result in a global ocean convention acceptable to all States. The mistakes where sought to be corrected by the time the Third Conference on the Law of the Sea convened in New York in 1973. The United Nations Convention on the Law of the Sea, 1982 was the result of this Conference and has been the major treaty body regulating the use of oceans for the international community since its coming into force on November 16, 1994. Amb. Satya Nandan is widely recognized as the principal architect of this exercise who ironed out differences existing between various countries on diverse contentious issues. In the process, the Pacific States and Asian-African States were able to secure maritime jurisdictional claims of 200 NM from their baselines through the creation of Exclusive Economic Zones (EEZs), a unique output of the Convention first articulated in the Colombo Session of the Asian African Legal Consultative Organization (AALCO) in 1971 by Kenya. In addition, Amb. Nandan negotiated the rights for archipelagic States and the passage through straits for international navigation. In all cases, his determination to safeguard the interest of Pacific States and by doing so the interests of the broader community of Asian-African States stood out with conviction that continues to find resonance in global treaty negotiations till this date.
The provisions pertaining to deep-sea bed mining continued to remain contentious even after the adoption of the 1982 Law of the Sea Convention. This lead to the delay in the coming into force of the Convention. Urged by the then Secretary-General of the United Nations, Javier Perez de Cueller, Amb. Nandan joined the Organization as the Under Secretary- General for Ocean Affairs and Law of the Sea and the Special Representative of the Secretary-General for Law of the Sea. Most of the concerns pertaining to the issue were resolved through the intervention of Amb. Nandan as Chairman of the ‘Boat Paper Group’ resulting in the 1994 Implementing Agreement on Part XI, which created the International Seabed Authority to regulate the conservation and use of non-living resources on the deep-sea bed in areas beyond national jurisdiction.
Elected as the Secretary-General of the International Seabed Authority in 1996, Amb. Nandan in his three-term tenure that lasted till December 2008 was instrumental in moulding the ISA from its inception as an international organization with a specific mandate including establishing its main organs- the Assembly, Council, Legal and Technical Commission and the Finance Committee. It was during his tenure that the Regulations on Prospecting and Exploration of Polymetallic Nodules in the Area also known as the ‘Nodules Regulations’ were promulgated that would regulate the actual conduct of deep-sea mining in the ‘Area’ . The establishment of an Endowment Fund in 2006 by the Authority for the advancement for marine scientific research (MSR) activities was also a significant feature of the work of the Authority and was widely welcomed as advancing the mandate of UNCLOS, 1982. Incorporating the ‘Precautionary Approach’ to the work of the Authority was a legacy of Amb. Nandan, which was validated by the Seabed Disputes Chamber in February 2011 in an advisory opinion that mandated the application of this principle as originally laid down in the 1992 Rio Declaration.
Amb. Nandan’s role in creating a global legal framework for fishery conservation was yet another shining aspect of his legacy. As Chairman of the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, the global community would witness theadoption of the 1995 United Nations Fish Stocks Agreement under his leadership and the subsequent setting up of the Western and Central Pacific Fisheries Commission. His lifelong commitment to sustainable use of marine living resources continues to inspire sustainability debates in the sector and remains highly valuable in the context of ‘blue economy’ debates.
The Virginia Commentary, which remains the most significant and reliable elucidation on the law of the seawas spearheaded by Amb. Nandan. It gives a masterly account of the treaty negotiation process leading to the adoption of the convention and forms a crucial corpus of the Law of the Sea. While it involved the effort of numerous individuals, Nandan is credited with providing intellectual leadership of the project as the series general editor of the work along with Shabtai Rosenne. The seven-volume book, which took 26 years to prepare, remains an indispensable account for any serious scholar or practioner of the subject.
Born To Rule: Sovereignty in International Law
When you ask those born in this age of the internet about the concept of royalty or monarchism, you should expect mixed answers. Anything from the latest Disney movie to the fairytales of the British royal family seem to be the accepted definition. The world has forgotten that just about a century ago, most of human civilization was governed by monarchies.
From the moment of birth, a monarch was taught to be a leader for the rest of his or her life. Today, many members of these ancient families have been reduced to footnotes in history. We know of eminent persons such as Dom Duarte Pio, the “king” of Portugal; Constantine II, the “king” of Greece; and Simeon II, the “king” of Bulgaria who do not administer their countries but retain certain rights according to international law. Though they lost all the pomp and circumstance, have they also lost their sovereign right to rule?
The Definition of Sovereignty
Sovereignty is one of the most important concepts of political science and international law. Many believe that no other term has given rise to more discussion and confusion than the word “sovereignty.” It is used in a variety of ways which are not clearly distinguished from each other. The word “sovereignty” is derived from the Latin word “superanus” which means “supreme power”.
Definitions of sovereignty are numerous and varied. French jurist and political philosopher Jean Bodin was the first Western writer to develop a systematic doctrine of sovereignty. He defines it as “the supreme power over citizens and subjects, unrestrained by law”. Dutch humanist, diplomat, lawyer, theologian and jurist Hugo Grotius, defines sovereignty as “the supreme political power vested in him whose acts are not subject to any other and whose will cannot be overridden”.
The ultimate authority to rule within a polity is known and commonly accepted at present times as a definition of sovereignty. Historically, the ultimate authority within a polity was vested in the person of the sovereign, a monarch whose rule was granted by divine right or local custom, and often by a good deal of force.
The Concepts of Sovereignty
Things were quite simple and defined up until the Middle Ages. God was sovereign, and that is all that mattered. In the Book of Psalms, Psalm 24:1 writes that “the earth is the Lord’s, and the fulness thereof; the world, and they that dwell therein” offered soothingly emphatic confirmation of this. Few temporal leaders would dare usurp God’s position at the top of the
body politic. This gave the Church a central place and enormous influence in all affairs of the state. Eventually, God was good enough to delegate. He kept things simple by investing sovereignty in monarchs. Now they, and they alone, had absolute power within their territories. And they were at pains to stress that this monopoly of sovereignty was a “divine right.” Laws may now have emanated from human words and deeds, but for anyone thinking of causing trouble, such laws were still seen to be the expression of God’s will.
Similarly, the Quran affirms that the term “Sultan” meant moral or spiritual authority. It was used later by Muslim sovereigns to represent political and governmental power. This was written in the Surah ar-Rahman 55:33 which roughly states that “O assembly of the jinn and the human! If you have power to penetrate through the diametrical zones of the heavens and the earth, then penetrate (go through them)! You cannot penetrate through them except with a Sultan (authority)!”
As the “Age of Reason” or the Enlightenment took Europe by storm, the world of absolutes began to slip away. The concept of sovereignty started to mutate and increasingly became more complex. Ideas of popular will, individual rights and “parliamentary sovereignty” slowly gained a foothold across the region. Things were no longer simple.
What is de jure and de facto sovereignty?
Sovereignty being a query of fact, a contrast is sometimes made between de jure and de facto sovereignty. The de jure sovereign is the legal sovereign and the de facto sovereign, is obeyed by the people whether he has a legal status or not. A de facto sovereignty may rest purely on physical force, where de jure sovereignty has the legal right to command obedience.
The distinction between the two comes out abruptly in times of revolution or usurpation. Some developments mean a mere change in the personnel or organization of government, while others result in a complete destruction of the old legal sovereign and the establishment of a new one.
How long does a de jure sovereignty last?
Under the principles of public international law, a ruler who is deprived of the government of his territory by either invaders or revolutionaries remains the legitimate de jure sovereign of that country while the de facto regime set up by the revolutionaries or invaders is considered a “usurper”, both constitutionally and internationally.
The question of how long a de jure sovereign may continue in this status is answered by the book “Synopsis of the Law of Nations” written by Johann Wolfgang Textor, which states that de jure sovereigns retain their status as long as they don’t surrender their sovereignty to the de facto government. A dispossessed royal family may keep their claims alive by filing diplomatic protests against the usurpers as required by International Law. That claim can only be abandoned when the protests are stopped. The failure of royal heirs to prosecute or assert their claims may disqualify them from any consideration to the inheritance. This corresponds
to Emmerich de Vattel’s legal treatise “The Law of Nations: Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns”, which states that only when such protests cease does a prescription arise against the de jure rights of a legitimate claimant. When this occurs, the sovereignty passes back to God, who gave it or may be passed in some cases to the de facto government which at that point would be legitimized and will acquire the full de jure rights of the former sovereign.
Such legitimate claimants are de jure sovereigns and, as such, remain head of the government-in-exile of their usurped territory.
Public international law towards the legal validity of objections against the usurpation of sovereignty applies to both republic and monarchical states. Prof. Stephen P. Kerr in his academic paper entitled “Dynastic Law” states that “The United States of America refused to recognize the 1939 Soviet usurpation of the three Baltic Republics of Estonia, Latvia, and Lithuania. This facilitated the maintenance of Governments-in-Exile of the Baltic Republics and the maintenance of embassies in Washington, D.C., which persisted through the Cold War Era until these countries managed to recover their independence. Accordingly, matters pertaining to de jure Governments-in-Exile are matters of public international law. The de jure sovereignty of a state which has been usurped by a foreign conqueror is not extinguished by such usurpation but survives as long as such sovereignty is kept alive by competent diplomatic protests.”
Non-reigning or dispossessed monarchs, who, as de jure sovereigns, may continue to exercise their sovereignty. This conforms with public international law fully taking into consideration that they do not surrender their sovereignty to the de facto government. This is legally supported for as long as such sovereignty is kept constantly affirmed with strong diplomatic campaigns.
Resulting from this, any monarch that has been relieved of his power yet continues to perform his birth right across the globe does not lose this immutable sovereignty.
Reimagining the contours of “Common Heritage of Mankind” vis-à-vis right to Health
Authors: Manini Syali and Vinayak Jhamb*
In the recent meeting of G20, Indian Prime Minister Narendra Modi called for sharing medical research freely and openly between nation states for the development of mankind. This raises interesting questions with respect to re-assessing the existing contours of the Common Heritage Mankind principle (CHM), commonly applied in the context of natural resources. This become important especially in the present context when the entire mankind, as a single unit, is facing an unprecedented challenge in the form of the COVID-19 pandemic.
The COVID-19 pandemic has brought forth unprecedented challenges before the world community and not even a single nation state has remained out of reach of the damage and adverse impacts it can cause. Moreover, it would not be wrong to equate the magnitude of this contagious spread with the two World Wars which the world had the misfortune to witness.
It is also a well-established fact that due to historical as well as socio-economic reasons not all nation states are at an equal footing when it comes to infrastructural development. This in the present context becomes extremely important and places a burden on the developed states to share the health care resources they possess with the other less resourceful countries. It is pertinent to note that an appeal in this regard was also made by the Indian Prime Minister Narendra Modi, at the recent G20 meeting, for utilizing and sharing medical research freely and equally between nation states for the benefit of the entire mankind.
Countries have started working in this direction and the United States has already announced financial assistance of 174 million USD to 64 countries, for effectively fighting the COVID-19 pandemic. Out of this amount, 2.9 million USD is being offered to the Indian government for preparing laboratories, activating case findings and conducting event-based surveillance.
This call made to the World Community to operate as a unified whole for disease eradication is not new and also gets reflected in the goals and purposes for which the World Health Organization was established. Moreover, the nomenclature used for the organization clearly signifies that the focus was on looking at health as a global agenda which goes beyond artificially constructed sovereign borders. Despite existence of a specialized United Nations agency and acknowledgement of right to health as a primary human right by virtue of Article 12, International Covenant on Economic Social and Cultural Rights, there remains a disparity between the world population when it comes to accessibility of health care facilities.
Moreover, the Doha Declaration on the TRIPS Agreement and public health is a good example which can substantiate the above discussed proposition. The Declaration attempted to reconcile the existing conflicts between Trade Law and Right to Health and also responded to the concerns of developing countries about the obstacles they faced when seeking to implement measures to promote access to affordable medicines in the interest of public health in general. This demonstrates that Health Related rights stand in conflict with parallelly operating legal regime, namely, International Trade Law. The focus of the Declaration remained on the following health related aspects of TRIPS: Compulsory Licensing, Parallel Imports and the Transition Period for Least Developed Countries. Despite existence of such an exhaustive legal regime, health care remains far from becoming universally available. The present article, thus, attempts to analyze whether the scope of health related rights need to be expanded beyond the already existing legal frameworks and whether international law doctrine of common heritage of mankind can encompass universal health care and related aspects.
Common Heritage of Mankind and Healthcare
The term “Common Heritage of Mankind” is a comprehensible term which needs to be explored completely. The fundamental premise of this concept entails the principle of equity in the real sense of the term. It states that all the resources available in different geographical set ups have to be adequately allocated amongst the world population with utmost precision and parity. However, the concept has never been followed strictusensu at the international forefront. It is absolutely unimaginable to think that all the nation-states sharing the global resources equitably. But, one of the major lacunas highlighted by the authors is the lack of considering “health resource” as an intrinsic part of Common Heritage of Mankind. The scholars across the globe have turned a blind eye to this issue since time immemorial. They claim that once this first generation human right enters into the domain of “common heritage of mankind”, it would essentially open up a Pandora box as the first generation human rights of “right to life” which has been enshrined in the International Convention on civil and political rights”. The sanctity of the binding nature of the Convention is beyond debate ,thus, formulating right to health as one of the unmoving legal principles at the international forefront is a herculean task.
Concrete and Express Recognition of Right to Health
This does not mean that the international community has been absolutely oblivious of this issue. However, their efforts have only helped in unifying right to health as a directory measure at the international forefront. The lack of concrete steps in this regard still haunts the international legal regime. The authors under this piece are trying to put across a question in front of the world about the need of having a specific regulation reconsidering the right to health as a valuable resource. The domestic legal regimes very well have their set of standard operating procedures vis-à-vis this issue but the vacuum at the international level still persists.There have been times wherein the expanding contours of trade and commerce have sabotaged public health crisis which is akin to a quagmire of innumerable problems which have no definite solutions. Public health is one of those invaluable assets which have to percolate at every level of governance. So, adequate steps need to be taken in this regard and this can only be done with the co-jointed efforts of the international community members and the civil societies operating independent of any governmental control.
Unprecedented Times call for Unprecedented measures
The contemporary crisis which has taken a vice grip of everyone across the globe has opened up our narrow minds. The problem of Corona Virus which has become an intrinsic matter of discussion in every household across the world today is increasing exponentially. This emanated from a small town of China named as Wuhan and spread like a wildfire across the globe is highly uncalled for. The plight of Italy, Spain, USA and Iran cannot be attributed apt words. The entire globe is facing an existential crisis because the governments have always lived in delirium and never abided by the principle of “Prevention is better than cure”. India also is facing the brunt of this virus with more than 1200 positive cases registered by the Indian Council of Medical research in consonance with the Health Ministry of India. So, the problem which perpetuated in China is taking a toll on all of us out there. But, at this juncture, the authors want to pose a question to the world- All those medical equipments and technologies which the countries are intending to import, should they not be readily available without any charges in such times of need? Or will excessive imports by these needful countries not disturb their Balance of Payment fulcrum? These questions might have their roots embedded in the economic realms but have a specific legal tangent attached to them.
But, the authors just intend to highlight the immediate need of having health as a specific resource which can comfortably fall under the domain of “Common Heritage of Mankind”. If the news agencies are to be believed, China has promised to help the other countries in distress, but then a thought pops up about the existence of IPR issues while sharing the requisite vaccine? Or what shall be the opportunity cost which China shall ask for in this process? These questions are popping up time and again in our minds and the authors are absolutely not familiar with any concrete solution other than making public health a resource under the common heritage of mankind.
Though it has been rightly said by Robert Merton that “It is good to ask questions but it is always better to find solutions to those questions”, but such complex set of questions cannot be answered in one go. They need proper analysis of the problem and then only certain concrete measures could be thought of. The idea behind writing this piece was to ignite the spirit of research in establishing the inter-relationship between the commonly found concept of “common heritage of mankind” and right to health as a resource. It would be highly falsified on our parts if we bombard the readers with a special set of suggestions because the cost-benefit analysis of each of those suggestions is varied and comprehensive. Thus, the authors have left the door ajar so that the readers are able to familiarize with the given set of problems which are staring us and then accordingly ponder about the need of expanding the contours of “Common heritage of mankind”.
*Vinayak Jhamb is a Research Scholar at University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, Delhi
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