Journalists and media actors perform a crucial role in modern societies, reporting news and disseminating and sharing information with the people that exposes the misdeeds of state agencies, bodies and make state institutions accountable and transparent. They contribute by creating more fair, peaceful, and inclusive societies. The press freedom and free media is the new independent organ of a democratic political set-up what I call ‘constitutional state’ beyond the conventional three-fold separation of power doctrine propounded by the Baron de Montesquieu in his work “The Spirit of the Laws” (1748) which states that “There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates … [or] if the power of judging be not separated from the legislative and executive powers(sic).” Therefore, global press freedom and free media is an inalienable part of transformative constitutionalism that survives on the right of democracy to have the diversity of opinion, the right to independent journalism, and the right to think like a journalist within the constitutional mandate. However, around the world, journalists are confronting unprecedented fear and violence in their pursuit of truth and fairness, while media freedom has been gasping for liberal space.
The worldwide killing of journalists in 2019 has recorded a noteworthy downswing; however, the global press freedom crisis got aggravated to the new heights owing to the governments preferring to punish independent journalists everywhere. State-patronized-led (SLP) violence against media and journalists in the form of stigmatic campaigns, subjective news hounding, and legal persecution has been guzzling global press freedom. SLP violence has divested the freedom of the press of its core elements such as impartiality, independence, fairness, nonconformity, and self-determination. The International Press Institute (IPI) has recorded the coverage of global press freedom in 2019 that shows an incremental trend in SLP violence such as state enacting new draconian laws, state abusing the existing laws to curb media freedom, state threatening the independent journalists for harassment and incarceration and state creating new pliant and docile media indulging in peddling state-designed rhetoric and populist perception across the world.
IPI Executive Director Barbara Triofni opined that “2019 has witnessed a clear downswing in the number of journalists eliminated to the lowest level in 20 years, even as impunity remains a major challenge. We certainly welcome this development. However, we fear it may be a direct consequence of increased authoritarian tendencies in many countries, where alternative means of silencing the press, such as twisting the law to harass and jail critical journalists while smearing independent media, have been adopted to shield political leaders from scrutiny and criticism.”Further, 2019 has witnessed police raids and arrests of media persons and journalists worldwide while undermining the international media law.The 2019 World Press Freedom Index (WPFI) categorized the media climate in more than three-fourths of the 180 nation-states and territories researched as “problematic,” “difficult” or “very serious” and only 8% have a media climate regarded “good” (sic).
Suppression of Free Media Worldwide
An IPI Executive Board member, along with the founder of the online news outlet Rappler Maria Ressa was arrested twice in 2019 on cyber libel and other charges in February and March, respectively. The government of the Philippines has filed several cases against Maria and her media outlet Rappler due to its criticism of President Rodrigo Duterte and his ministerial colleagues. In Egypt, the government intensified its intimidation exercises like swooping news organizations, vandalizing free media houses, and arresting independent scribes. In November 2019, Egyptian security agencies raided the offices of the most important online news platform in Egypt known as Mada Masr that has been conferred upon with IPI-International Media Support (IMS) award for its courageous, responsible and investigative journalism. In total, more than 60 journalists have been rotting in Egyptian jails in extremely inhospitable conditions. Al Jazeera’s Mahmoud Hussein has been in detention for more than three years, and Ismail Alexandrani has served almost four years in prison.
In Turkey, about 115 journalists have been imprisoned for long as reported by the IPI-International Press Freedom Mission that recorded “no improvement” in press freedom in Turkey and pointed out the political subjugation of Turkish judiciary failing in protecting the rights of journalists. New waves of repressive measures such as re-arresting of released journalists who castigated the Turkish military invasion of Syria. In Australia, a police raid on the homes of journalists working with the Australian Broadcasting Corporation (ABC) was conducted due to ABC’s reporting of unlawful killings of Afghans by the Australian Special Forces in Afghanistan in 2017 that attracted international criticism and accentuated the inadequate safety measures for the free press in Australia.
In South Asia, with authoritarian state propaganda, disinformation, undeclared censorship, cyber-harassment, intimidation, and physical violence is the new normal. South Asiahas theworst record on the free press as reported by the Reporters Without Borders(RSF),and it is a region that is infested with all the problems that have overwhelmed press and independent journalism. The WPFI collected by RSF establishes that hatred to journalists has degenerated into violence and accelerating the threshold of fear and torture. The number of safe countries for journalists has been declining as SLP violence continues to strangulate the free media. As per WPFI rankings, the number of murdered journalists was extremely high in Afghanistan (121st), India (142nd), Maldives (98th),Pakistan(152nd),and Sri Lanka (156th).Consequently, the maneuvering of social networks in Myanmar that pandered to anti-Rohingya hate messages and imposition of the 7-year jail imprisonment of two Reuter’s journalists who tried to investigate the Rohingya genocide was a new normal.
There are many other dimensions to the suppression of free media like the Internet that is frequently subjected to shut-down and deliberate slowdown. In today’s world of technology, the Internet controls the free flow of information, freedom of the press, and free speech. In South Asia, the highest number of Internet shutdowns globally has been recorded, and India has earned the dubious distinction for the same. The Internet shutdowns are “any intentional disruption of the broadband or mobile Internet or Internet-based mobile apps, by an order of the authorities or threat of non-state party, to control communication or online content or slowing down the access to the general public (sic).” In many cases, the government gives the justification for the Internet shutdown is to “maintain law and order.”However, the majority of the shutdowns are either pre-emptive or reactive measures in the wake of mass or potential violent public protests.
Globally, national governments have been promulgating new laws in Nigeria, Cambodia, and Singapore on the pretext of national security, public order, and national integrity. The increasing influence of China is responsible for censorship in Singapore that ranked 151stand Cambodia143rd. In Poland, leading online media outlet, Gazeta Wyborcza has been beleaguered with libel cases filed by the Polish government officials while Bulgaria launched a criminal investigation against Bulgarian journalist Atanas Tchobanov and Assen Yordanov for their investigative journalism. In Africa, more than 20 journalists’detention in Uganda on 04 November 2019 and in Tanzania, a freelance journalist Erick Kabendera who was conferred with David Astor Award in 2009,has been arrested initially to investigate his citizenship credentials but subsequently, he has been booked under money laundering charges. In such a hostile atmosphere, the political ecosystem can fundamentally and adversely transform the environment for independent journalists and free press.
Delegitimization of Free Press Personnel
Primarily, authoritarian regimes are the first category of institutional structures that denigrates press freedom for their ulterior objectives, which cannot be achieved by constitutionally-driven channels. These state structures are manned by the politicians who have radically transformed the free social media to denigrate and hound free media platforms and bully independent journalists for their critical journalism. US President Donald Trump denigrating press freedom continuously and attributing journalists as enemies of the people and many like-minded politicians across the world are also following him. The framework of press freedom in the US has been tattered and debilitated by the political pillory of independent scribes in 2019. Media freedom has been confronting the criminalization of journalists covering protests, escalation in harassment, and denial of access to government-held information.
In Pakistan, editor of an English newspaper Dawn was threatened with death by the politicians associated with the incumbent government on social media due to his publishing a report on London stabbing attacks on 29 November 2019.In Brazil, Glenn Greenwald—co-founder of an online news outlet, The Intercept—faced a smear campaign of threats of violence, prosecution and deportation emanating from patronized politicians and blue-eyed boys of President Jair Bolsonaro after he published damaging revelations about the unethical behaviour and transgressions of power exercised by a former judge Sérgio Moro and now justice minister. In Hungary, since 2010, the government has been tempering systematically with media freedom and pluralism by twisting the media market and alienating journalistic community to achieve the maximum degree of media control unprecedented in an EU member state as highlighted in a report compiled by the IPI-led joint Press Freedom Mission in November 2019. The report has underscored a systematic delegitimization of free press personnel by calling them as political activists, foreign agents, and traitors.
Downswings in Violence against Press Personnel
The persecution of free press on legal grounds increased in 2019, but there is a significant decline in the killings of a journalist if compared to preceding years. Forty-seven journalists have been killed in 2019 as compared to 82 and 79 killings of journalists in 2017 and 2018, respectively. Out of 47 deaths in 2019, there were 30 targeted killings due to investigative journalism regarding crimes and corruption involving criminal syndicates. However, as many as 19 journalists were victims of targeted killings in the Americas consisting of 9 alone from Mexico. In Africa, one journalist got killed in 2019, and in Asia, 6 journalists were killed in targeted attacks. Reduction in violence and murder of journalists is a positive development but impunity and culpability for past killings of journalists remain pandemic and a multiplying challenge.
Mexico turned out to be an extremely hostile country for the journalists and flopped in its responsibility to bring a single culprit to justice out of more than 100 murders of journalists since 2006, as highlighted in a report compiled and released by an international mission on 06 November 2019.This international mission was carried out by the representatives of 17 international press freedom organizations in response to Mexico’s crisis of journalist safety and impunity. However, Europe was the only region that has recorded a few positive developments in stopping impunity. In Slovakia, the murder of an investigative journalist Ján Kuciak and his fiancée Martina Kušnírová hogged the global limelight in 2018 and prosecutors in October 2019 initiated the charges against the accused Marian Kocner and three of his accomplices. In November 2019, the government of Malta charged a local business tycoon and high ranking officials of the Maltese government with the murder of an investigative journalist Daphne Caruana Galiziawho exposed the Panama papers’ corruption.
The Constitutional Court of Turkey (CCT) has adjudicated and ruled on the libel suit instituted by Ex-Ankara Metropolitan Mayor Melih Gökçek against journalist Hayko Bağdat and held that the penalization of journalist violated his right to freedom of expression protected under Article 26 of the Constitution of Turkey. The CCT opined that “it should not be forgotten that not only the protection of the essence of thought and knowledge but also the way of presenting the thought and knowledge are important in freedom of expression. Even though they are disturbing, the penalization of criticisms against politicians can serve as a deterrent factor and cause the different voices in public to be silenced out of fear of being penalized. It is an obstacle to the sustainability of a pluralist society (sic).”Thus, the methods used by many national governments around the world deviate from the core elements of the global rule of law and equality governance.
The Ecosystem of Sustainable Media Pluralism
The global press has been gasping for nonconformity and sustainable media pluralism worldwide. Free press and independent journalism are an inalienable element of the democratic framework of good governance. Omnipresent erosion of nonconformity and ubiquitous anti-media rhetoric are a deathblow to the ecosystem of sustainable media pluralism. The right to information of ordinary people emanates from the diversity of information; otherwise, it would be at the guillotine; however, in recent years, it has greatly empowered the journalists everywhere. It is important to address deliberate distortions in the name of the competition in the media market by expanding the gamut of fiscal support to independent investigative journalism. Sustainable democracy cannot be imagined without sustainable media freedom that requires a free media environment across the world. The concentration of media ownership has been perpetrated by the governments contrary to fair market competition that has badly affected the free press and media pluralism. National governments must review the availability and exploitation of state-owned resources and stop the practice of settling the multi-dimensional score with the independent media houses and rewarding pro-establishment media outlets.
It is expected that national governments ensure international norms of accountability, independence, and transparency while dealing with public broadcasting services. The administrative harassment and marginalization of the free press and independent media by the regulatory bodies of the state must be stopped. The protection of the independence of journalism, the safety of journalists, and other freelance media actors from discrimination in accessing the information and press meets. The inviolability of journalistic credentials and the ability of journalists to function and perform their role as an ombudsman in the reporting of Parliamentary working must be respected and appreciated. Any attack on independent journalists—online or offline—must be properly probed. Political intervention and influence in the media market have undermined the global free press that has exacerbated the ecosystem of sustainable media pluralism worldwide. The global community must profoundly cogitate upon the unprecedented sordid state of media freedom situation around the world and respond appropriately by taking measures in line with the principles and purposes of the UN Charter.
Where from here?
It is incumbent upon the national governments to emplace a robust normative framework on the safety of journalists. There are as many as twelve Resolutions and Decisions on the Safety of journalists adopted by the United Nations bodies such as the UN General Assembly, UN Security Council, UN Human Rights Council, and UNESCO since 2012. The safety of journalists under SDG 16.10.1 has been established as a measure to be accomplished as a part of the 2030 Agenda for Sustainable Development Goals, particularly public access to information and protection of fundamental freedoms. In 2013, UN General Assembly declared November 02 as “International Day to End Impunity for Crimes against Journalists,” and UNESCO has been leading all commemorations that have enhanced the understanding of the safety of journalists and impunity challenges. For achieving global free press and sustainable media pluralism, the challenges of media market distortions, discrimination in access to information, opaque implementation of media regulations, authoritarian public media broadcasting and de-legitimization of journalists must be addressed by revisiting the role of international media law.
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
Curious Case Of Nirbhaya And International Court Of Justice
On December 16th, 2012, a 23year old physiotherapy intern known as Nirbhaya was gang-raped and heinously murdered in a moving bus in Delhi, she died subsequently in a hospital in Singapore. The aftermath of the Nirbhaya incident witnessed widespread public outcry, which resulted in the amendments to various provisions of the Indian criminal law both substantive and procedural. Despite the radical reform in the criminal law jurisprudence, the convicts remain defiant and have recently moved the International Court of Justice (ICJ) seeking a stay.
On 16th March2020, the Supreme Court of India (SCI) rejected the plea of one of the convicts in the Nirbhaya gang-rape and murder case. The convicts were slated to be hanged on 20th March 2020, following which the convicts have written a letter to the ICJ seeking an urgent hearing to prevent “unlawful execution”. The letter reads as:
“I write to you to request your support and help, in whatever form, to prevent this barbaric and inhumane punishment from being inflicted upon convicts, the death penalty has no relevance in a progressive and modern International era. Inflicting it upon prisoners, who belong to the economically most vulnerable section of society will only serve to take out international forum several steps back.”
Notwithstanding this plea to the ICJ, the convicts were hanged on 20th March. This brief write-up intends to unravel the position of individuals in the ICJ and the progressive mechanism of individual complaint mechanism under international human rights law against the State.
Access to Individual under ICJ
The ICJ is the principal judicial organ of the United Nations(UN) that resolves disputes between States. The issue in the Nirbhaya case with regard to the ICJ is whether individuals can approach the ICJ claiming remedies against the State, the subject matter of which is purely domestic or in short does the ICJ have jurisdiction to entertain the claim made by the convicts. According to the former Supreme Court judge of India BN Srikrishna, the ICJ has no jurisdiction to order a stay; his point is the ICJ cannot act as a court of appeal, this is true because the jurisdiction of the ICJ is based on the consent between States and not individual, this is also reflected in Article 34 of the Statute of the ICJ (ICJ Statute). Further, the entire judicial process in the Nirbhaya case was proper, ie. hearing from the trial court to the Supreme Court; the convicts were provided several opportunities to file review and curative petitions. The larger question that needs to be addressed is the relationship between individuals in the ICJ. Firstly, over the years several judges and scholars of international law have argued for amending Article 34 of ICJ Statute to include individuals; moreover ,the Advisory Committee of Jurist, who drafted the PCIJ Statute ( Predecessor to the ICJ Statute) deliberated in detail the issue of locus standi; unfortunately, lack of support from majority saw the idea being dropped. Secondly, the famous dictums in the PCIJ and ICJ refer to the fact that injury to the individual constitutes an injury to the States, as asserted in the 2007 Diallo (preliminary Objection) diplomatic protection of the aliens extends to the protection of human rights; however, the extent and scope of these human rights are very much limited. Thirdly, according to Hersch Lauterpacht, the original purpose of the ICJ was to be a court of International Law, rather than a human rights court; thus individuals approaching the ICJ demanding Justice would require to circumvent the original intention of the drafters. Fourthly, post world war 1 witnessed the formulation several multilateral treaties to safeguard the rights of minorities, the PCIJ and ICJ through its advisory opinions had touched upon these treaties in the context of individual rights; however, the PCIJ and ICJ consistently refrained from invoking presumption against individuals rights and duties. Fifthly, the sole decision in the ICJ that has some proximity to the Nirbhaya case is the LaGrand case, in which the ICJ affirmed that individual might possess direct rights under treaties, however, in the La Grand case, the ICJ did not equate the right of consular access as human rights and thus adopting a strict state-centric interpretation. Moreover, the Judgement acknowledges the fact that the individuals approaching the ICJ could invoke rights through the national State.
Sixthly, in international law, the concept of state immunity has trumped human rights or individual rights, in the Arrest warrant case and the Jurisdictional immunities case the ICJ firmly establishes the fact that immunity overrides international crimes, although the backdrop of these cases significantly differs from Nirbhaya, the undisputed fact that remains is State is protected under the ambit of immunity. Taking all these factors into account, it was on the expected lines that the convicts in the Nirbhaya case would be unsuccessful in espousing their point of view in the ICJ via a letter; moreover, the jurisprudence of ICJ in terms of cases akin Nirbhaya are none; therefore the ICJ will continue its trend of ‘State-Only’ conception of international legal personality.
Individual Complaint Mechanism under International Human Rights Law
The Nirbhaya convicts rather than taking recourse to the ICJ could have sought remedies under individual complaint mechanism of Individual Covenant on Civil and Political Rights (ICCPR), however this would also be a futile exercise considering the fact that, India is not a signatory to the Optional Protocol of ICCPR.The ICCPR under Article 28 provides for the establishment of the Human Rights Committee (HRC) consisting of 18 members. The committee meets three times per year; the State party must submit a report to the HRC dealing with the implementation of the ICCPR’s provisions, after the initial report a State has to submit periodic reports, based on which the committee prepares its concluding observations. Further, the HRC is competent to entertain an individual complaint for alleged violation of an individual’s rights under ICCPR. The HRC also provides general comments to clarify the contents of ICCPR’S provisions. Assuming that India is a signatory to the optional protocol of ICCPR,TheNirbhaya convicts hypothetically speaking could have approached the HRC by taking recourse to Article 6(2) of ICCPR which reads:
“In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes by the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out according to a final judgement rendered by a competent court”.
Assuming that the convicts approached the HRC, literal interpretation of the above provision points out that, the crime of rape and murder falls under the ambit of ‘most serious crimes’, however, India does not have codified list of crimes which constitutes ‘most serious crimes’, it is upon the courts in India to determine the same on a case to case basis, in short, it is a matter of pure judicial discretion. The general comment no.36 on Article 6 of ICCPR on the right to life in paragraph 16 implicitly recognise that countries which have not abolished the death penalty, to lay out clear and stringent criteria for retaining capital punishment; moreover the HRC in August 2019 identified the list of issues before submission of the fourth periodic report of India, one of the issue being the elaboration on any comprehensive review of the relevant legislation to ensure that the death penalty may be imposed only for the most severe crime and indicate whether the imposition of the death penalty is mandatory for certain crimes. The legislature in India requires to framean enumerative list of ‘most serious crimes’, which fits the death penalty template, instead of passing the buck to the judiciary. Despite the cacophony surrounding the Nirbhaya verdict, justice was meted out to the victim on 20th March with the hanging of the convicts.
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