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International Law

Applicability of international law for justice: Remarks on Ukraine International Airlines Flight 752

Punsara Amarasinghe

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Authors: Punsara Amarasinghe and Esshan Jayawardane*

The pandemonium erupted following Soleimani’s death seems to have encircled the embattled regime in Iran after admitting that Ukrainian flight was shot down by their force with 176 people on board. The protestors who chanted death to America at Soleimani’s funeral changed their tune when they realized the government they reverently supporting has lied to them about the cause of the air crash as a technical failure. A week after the tragedy Teheran has openly claimed that air crash was a result of human failure as a missile operator misidentified it as a cruise missile after Iran launched missiles to the US airbases in Iraq. In the meantime, Canadian prime minister Justin Trudeau’s persistent remarks on demanding justice for the victims has caused an uproar amid the tension. Indeed, 74 victims on board happened to be Canadians albeit they were either ethic Iranians or with Iranian origin. This situation raises some concern whether Canada, Sweden, Ukraine and the UK seek some judicial remedy under international law for Iran’s act of shooting down an aircraft which carried its citizens. This situation is a sheer reminder of what exactly happened in 1988 when Iranian flight was shot down by the US Vincennes, a missile cruiser of the US navy in the Persian Gulf. In the situation in 1988, Iran filed a case against the US in International Court of Justice and within the time limit fixed for the filing of its counter memorial, the USA raised preliminary objections to the jurisdictions of the court. However, both parties later entered into an agreement in a full and final settlement resulting in the closure of the case in the ICJ.

From a vantage point, the ability for Canada or other affected states to apply international law to seek justice should be mainly understood by examining the current international law measurements covering the civil aircraft. The Convention on International Civil Aviation16 (Chicago Convention) is the core document regulating international civil aviation. Its governing body, the International Civil Aviation Organization (ICAO) is responsible, amongst other duties, for minimum standards of flight safety. Iran has signed and ratified the convention, hence remained legally obliged to uphold it. It’s Article 3 has explicitly stated “The contracting states must refrain from resorting to the use of weapons against civil aircraft and in that case of interception, the lives of persons on board and safety of aircraft must not be endangered. Secondly, the Montreal Convention for the Suppression of unlawful Acts against the safety of Civil Aviation remains the other necessary black letter legal mechanism available in international law.

Also, the UN charter being the zenith of international law has framed certain conditions regarding the use of force. In particular, its Article 2 (4) requires all member states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” It is assumed that the use of force against a foreign civil aircraft, even within the boundaries of a nation state triggers international law in that it constitutes a “use of force” within the meaning of the above rule. In the case of the Iranian shot down of the Ukrainian flight, the issue of “Self-defense “arises as it occurred amid an escalating situation followed by Solemani’s assassination by the US Drones and Iranians military response to it. If Canada triggers international law to seek justice for its lost citizens, Iran is likely to rely on the Article 51 of the United Nations Charter which verifies member states inherent rights for the self-defense. However, it is important to consider that yardstick behind the applicability of “Self Defense “is rather subtle.  Especially, the justification of applying “self-defense “has been generally referred to the situation of “imminent threat “.  Even before the creation of Article 51 in the UN Charter, the scope of imminent threat was discussed as a complex issue in the early development in the 19th century international law. As an example in the Famous Caroline test affair between the USA and Great Britain, American statesman Daniel Webster described the imminent threat as “instant, overwhelming and leaving no choice of means and no moment for deliberation”. Given the scenario that flight was shot down just hours after Iran attacked two US bases in Iraq, the salient contention that one can raise is that Iranian missile operator’s deadly mistake of misidentifying the Ukrainian plane as an American missile ended up in a calamity. Nevertheless, there was no clear claim to build an imminent threat from a civil aircraft. Yet, the claim made by Teheran has affirmed shooting down of the flight was a result of human error or otherwise a mistake. The availability of remedial solutions for mistakes in international law are tiny and depends on the specific circumstances.  In this particular situation liability of Iran appears to be more severe than the claim it yields by justifying the act as a result of a grave mistake. The initial Iranian attempt to obstruct the investigation in the aftermath of the air crash and its deceptive act of portraying the air crash as a result of a technical error intensifies the culpability. More importantly plane would have never met its ill fate if Iranian authorities closed down its air space on that day knowing well that hostilities with the US can easily escalate following their missile strikes. This situation upsets Iranian claim of a sincere mistake caused the tragedy as the given factors aptly show even if the mistake was an honest one, the acts Iranian state which paves the path to the catastrophic event were not reasonable. 

All in all, the most less troublesome answer that can help Iran before any possible international law claim by Canada, Ukraine, Sweden or Great Britain is to admit the liability as a state and frame the reparations for those lost lives of individuals. The act of conducting a fair investigation, providing reparation and more importantly the unconditional apology as a state can avert Iran from further diplomatic isolation as a pariah state. 

*Eshan Jayawardane is an independent researcher resides is Napiers, New Zealand. He completed his BA in Delhi University and completed his MA in International Relations at Jawaharlal Nehru University in New Delhi, India. He can be reached at eshan.jayawardena[at]gmail.com.

Punsara Amarasinghe is a PhD candidate at Institute of Law and Politics at Scuola Superiore Sant Anna, Pisa Italy. He held a research fellowship at Faculty of Law, Higher School of Economics in Moscow and obtained his Masters from International Law at South Asian University, New Delhi. He served as a visiting lecturer at Faculty of Arts, University of Colombo Sri Lanka and author can be reached at punsaraprint10[at]gmail.com

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International Law

Affixing China’s Liability for COVID-19 spread

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Authors: Manini Syali and Alisha Syali*

The article analyses whether International Environmental Law can be invoked for making China liable for the COVID-19 pandemic, which is said to have its origin in the wet markets of Wuhan, and if there exists an interrelationship between Right to Health and Environment.

The world is currently witnessing an unprecedented health crisis in the form of the COVID-19 outbreak, which is said to have its origin in the wet markets of Chinese city of Wuhan, infamous for its exotic meat products widely consumed by the local populations in the name of prevailing superstitious practices. The virus which has now affected 199 countries, has resulted in a death toll of 34,000 so far. China on the other hand is on a road to recovery and has started lifting the lock downs, which for months made its population live in isolation. The question arising at this stage is whether China should be made responsible for the apocalyptic conditions it has brought before the world community, despite its previous promises to shut down its wet markets during the 2003 SARS outbreak and if International legal framework regulating Trans boundary environmental damage is appropriate to affix this liability. An attempt in this article will, thus, be made to analyse the law on Trans boundary environmental damage in the context of contagious disease transmission across sovereign borders.

Development of law on Trans boundary environmental damage

In the Trail Smelter arbitration, the world community for the first time witnessed that the concept of ‘sovereignty’ is not absolute and no nation state can be allowed to use its sovereign territory in such a manner so as to cause harm to another nation state.The tribunal in this case laid down the principle in the following words “under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.”

The concept, however, took a concrete shape only through the Principle 21 of the Stockholm Declaration, which went on to impose responsibility upon nation States for ensuring that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

A major criticism against the primary International environmental instruments, namely the Stockholm Declaration and the Rio Declaration, has been that they remain in the form of soft law norms and never actually had any strong enforcement mechanism behind them. It would, however, not be wrong to state that this proposition does not hold good any longer and International jurisprudence has also proved the contrary. A good example of the same is the landmark Nuclear Weapons Advisory Opinion of the International Court of Justice (ICJ), in which ‘the due diligence obligations’ of nation states in Trans boundary contexts were upheld by the World Court. The Court took note of the looming threats which nuclear weapons pose on the environment and went on to highlight that “environment can never be seen in abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.” The court further laid emphasis on the general obligation of States to ensure that activities within their jurisdiction and control, respect the environment of other States or of areas beyond national control and held it to be a part of the corpus of international law relating to the environment.

A similar question was also again raised before the ICJ in the case between Ecuador vs. Colombia (2008) .The incident involved spray of herbicide by Colombia in the sovereign territory of Ecuador and it was contended that Colombia has violated its obligations under international law by causing or allowing the deposit on the territory of Ecuador of toxic herbicides that have caused damage to human health, property and the environment. The case, however, was settled amicably by both the parties but nonetheless raises interesting observations with respect to International responsibility of nation states to not harm the sound environmental conditions of other member nations of the world community.

Does the concept of Trans boundary Environmental damage hold application when Human Health is in a jeopardy?

Environment related rights have not been expressly incorporated in any of the Human Rights instrument existing at the International level. The International Covenant on Economic, Social and Cultural Rights (ICESCR)under Article 12 (b), has nonetheless mentioned improvement of environmental hygiene to be a precondition of Right to Health. The drafters of the Covenant with the help of this provision, thus, acknowledged the existing interrelationship between right to health and sound environmental conditions.

Furthermore, under modern day International Law, nature has never been seen in isolation and has always been interpreted in the context of socio-economic environment, artificially constructed by mankind. It is pertinent to note that both the Stockholm Conference (United Nations Conference on the Human Environment) and the Rio Conference (United Nations Conference on Environment and Development) were titled in such a manner that they remained reflective of the Human development aspects attached to them. The titles further demonstrate that these key environmental law conferences and the legal instruments, which were a by-product of them, never truly focused on nature conservation in isolation from man-kind. In fact, the two leading Environmental Conventions i.e. Convention on Bio-Diversity and United Nations Framework Convention on Climate Change (UNFCCC) look at sustainable development as a matter of concern and  do not  have nature conservation as their primary objective. It can thus be stated that the subject matter of international environment law is sustainable use of environment by human beings.

An analysis of the above discussed legal propositions, thus, makes it clear that the currently existing International Enviro-legal jurisprudence is sufficient to hold a nation state accountable, if a contagious disease travels across its borders and causes damage of a trans-boundary nature. The reason behind this is that there exist a requirement to exercise due diligence while undertaking any activity within the sovereign borders. Furthermore, this pre-condition to any developmental or commercial activity does not remain limited to not causing harm to the ‘natural eco-system’ and includes granting protection to  human survival as well, because, the word environment under International Environmental Law,is inclusive of the man-made environment and safe and healthy living conditions of the present generation and of the generations unborn.

Conclusion

Therefore, for the purpose of affixing the liability of China under International Law, the legal framework governing Trans boundary environmental damage can be utilised, since, the spread of a contagious infection clearly demonstrates that there was a breach in observing due diligence obligations while undertaking commercial activities in the wet markets, which adversely impacted an important human right, namely, enjoyment of safe and healthy environment.

Both authors are writing in their personal capacity. All views expressed are personal.

* Alisha Syali is a BA LLB (H) Student at Amity Law School, Delhi.

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International Law

A Recipe for Disaster: Pakistan’s ‘Migratory’ Response to COVID-19 in Pakistan- administered Kashmir

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Authors: Aaditya Vikram Sharma and Prakash Sharma*

Various news outlets have reported that Pakistan is moving patients from Punjab to Pakistan- administered Kashmir. This article analyses the soundness of this decision vis- à -vis international law.

Recently, it has come to light that the Government of the Islamic Republic of Pakistan is moving coronavirus positive patients from the province of Punjab to Pakistan-administered Kashmir. This territory of Kashmir controlled by Pakistan is administered through two regions comprising of Gilgit-Baltistan and the so-called Azad Kashmir.

The patients of COVID-19 are being moved to “Special Quarantine Centers” that are coming up in Mirpur and other cities in the region. The region comprises of territories that are the two most marginalized areas under Pakistani occupation. In fact, Kashmir, as a whole, is considered a disputed territory.

In this article, we try to decipher the applicable international law concerning the State-mandated movement of COVID-19 infected people in Pakistan to Pakistan-administered Kashmir. We draw out the relevant international treaties and gauge the response of the government accordingly to find out the legitimacy of these acts.

Status of Kashmir

Kashmir is considered a disputed territory. The erstwhile Kingdom of Kashmir is controlled by three countries- China, India and Pakistan. India and Pakistan claim the whole of Kashmir. The history is complex and beyond the purview of this article.

It is pertinent to note that Pakistan’s stance has been, at least constitutionally, to respect the wishes of the Kashmiri people. To that end, the semi-autonomous State of Azad Kashmir was created. But, its autonomy is doubtful—the AJ&K Interim Constitution, 1974 under Article 7(3)states that  “[N]o person or political party in Azad Jammu and Kashmir shall be permitted to propagate against, or take part in activities prejudicial or detrimental to, the ideology of the State’s accession to Pakistan.” The Government in Islamabad exercises ultimate control on its administered regions.

On the other hand, India administered its administered region of Jammu and Kashmir by initially creating the State of Jammu and Kashmir. On 5 August2019, the Indian Federal Government removed the special status and created the two Union Territories of Jammu and Kashmir and Ladakh. The move was opposed by Pakistan which even threatened to go to the ICJ.

The Corona Virus outbreak in Pakistan

Coronaviruses are a large family of viruses which may cause illness in animals or humans. In humans, several coronaviruses are known to cause respiratory infections ranging from the common cold to more severe diseases such as Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS). The most recently discovered coronavirus causes coronavirus disease COVID-19.

This new virus and disease were unknown before the outbreak began in Wuhan, China, in December 2019. It is especially dangerous because its infectability is perilously high—people can easily catch COVID-19 from others who have the virus. The disease, which can be fatal, spreads from person to person through small droplets from the nose or mouth when a person with COVID-19 coughs or exhales. These droplets land on objects and surfaces around the person. Other people then catch COVID-19 by touching these objects or surfaces, then touching their eyes, nose or mouth. People can also catch COVID-19 if they breathe in droplets from a person with COVID-19 who coughs out or exhales droplets. This is why it is essential to stay more than 1 meter (3 feet) away from a person who is sick. Pakistan detected its first case on 26 February 2020. At the time of writing, as per the WHO database, there have been 1526 total cases, out of which 25 have recovered and 12 have died. However, instead of restricting movement, the Government of Pakistan has decided to move patients from the worst affected province to a least affected and internationally disputed and underdeveloped territory. The next part analyses the soundness of this decision under International Law.

International Law

As Pakistan-administered-Kashmir is a disputed territory, it is pertinent to see what international laws apply. De-facto control of the region is with Pakistan. So, our focus shall be on the treaties that apply to it. Under the international legal framework surrounding epidemics and pandemics, the primary documents that are available are the International Health Regulations (IHR). These were adopted by the World Health Assembly of the World Health Organisation in 2005 and entered into force in 2007. These regulations are applicable to196 countries, including Pakistan. One of the main principles of the IHR is that their implementation would be with “With full respect for the dignity, human rights and fundamental freedom of persons” (emphasis supplied).So, Pakistan is required to respect the human rights of the people in its administered territories.

The primary human right which applies here is the Right to Health. According to the Office of the High Commissioner for Human Rights, the Right to Health is considered an inclusive right and includes the right to prevention, treatment and control of diseases. This is enunciated by Human Rights instruments such as the Universal Declaration of Human Rights, 1948 (UDHR) and the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR). Pakistan is a party to both the Covenants.  The UDHR, under Article 25, states that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family..”Further, explicit provisions have been made under Article 12(1) of the ICESCR regarding the health of peoples. It reads as follows-

“The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

In fact, Article 12(2)(c) goes further and states that-

“2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

***

 (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;” (emphasis supplied)

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By moving infected patients into an internationally disputed and so-called autonomous territory, Pakistan is violating the rights guaranteed to these peoples. According to the WHO, the best methods to control the outbreak include isolation and social distancing. Most of the countries globally have gone into lockdown and restricted the movement of their populations. However, the Government of Pakistan, citing economic reasons, has been reluctant to declare a lockdown and in its wisdom, has decided to migrate highly infectious patients to a region with a relatively unscathed population.

Understandably, the locals are not in support of this move by the Government of Pakistan. So, the policy of the government goes against its stated goal to respect the wishes of the Kashmiri people. This migration of patients is being done even when the region has registered one of the lowest cases in Pakistan. At the time of writing, there are only 2 cases in the so-called Azad Kashmir province. Punjab has the highest number of cases, i.e, 558. The health-care facilities are also inadequate in Pakistan- administered Kashmir. Logic would, therefore, dictate making quarantine centres and creating better medical infrastructure in the better equipped Punjab province. Instead, quarantine centresare being established in the relatively underdeveloped Pakistan-administered-Kashmir. This move is quite baffling and contrary to international law.

Conclusion

Pakistan’s actions directly contradict its international stance and international law. In fact, its hypocrisy has taken a new tone when the Government of India offered aid during the SAARC conference and Pakistan raised the ‘Kashmir issue’. After raising the issue, it has started moving COVID-19 affected peoples from its Punjab province to its administered region of Kashmir. It should refrain from such acts and, as a matter of fact, treat them with better healthcare facilities that already exist in Punjab.

Both Authors are writing in their personal capacity. All views are personal.

*Prakash Sharma is an Assistant Professor at the Vivekananda Institute of Professional Studies, New Delhi, India.

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International Law

China’s aggressive moves in South China Sea

Prof. Pankaj Jha

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At the time when the whole world is reeling under the Wuhan virus epidemic, China has upped the ante in South China Sea, knowing very well that the domestic compulsions in the US would be a constraining factor for the global hegemon to undertake any military action in SCS. These maneuvers by China’s People’s Liberation Navy (PLN) are decimating the concept of China’s peaceful/harmonious rise. With Philippines abrogating the Visiting Forces Agreement with the US, the Chinese party leaders feel that it is right time to define Chinese strategic spaces through the use of military power. In October 2019 after a series of incidents in the Vanguard Bank, which falls under EEZ of Vietnam and regular patrols in the non-disputed areas last year, the focus has now shifted to the Union Banks, a group of small islands and land features, closer to central SCS region so that China can control the waterways. Earlier this month Chinese military aircraft conducted anti-submarine drills in those contested waters. This was in response to the USS Mc Campbell sail through the contested region. Further, China conducted joint exercises in mid –March despite knowing very well the risk of annoying other claimant countries. China has also activated its fishermen militia which have outnumbered all countries fishing boats in the SCS to outmaneuver them. These fishermen militia have been closely followed by Chinese coastguard ships as a brute show of power.     

In early March 2020, USS Theodore Roosevelt along with an advanced destroyer made the visit to Danang to mark 25 years of diplomatic relations. China perceived it as a growing closeness between the US and Vietnam as this was the second ever visit by any US carrier strike group to Vietnam. Earlier this week (March 24)the USS Barry (DDG 52), the US navy guided-missile destroyer during a live fire exercise fired a missile in the SCS showcasing its offensive capabilities. A day before that (March 23) Lockheed EP-3E reconnaissance aircraft of US Navy conducted surveillance sorties flying between Taiwan and the Philippines (Bashi Channel). This was in response to the infringement of Taiwan’s air space by Chinese military planes earlier in February.  The US counter moves and live firing exercises has annoyed China to such an extent that it has been firing lasers on US surveillance aircrafts while at the same time conducting air sorties in East China Sea through Chinese Shaanxi Y-8 maritime aircrafts. This growing intensity of Chinese naval actions have compelled Japan and Vietnam to further develop their defence and strategic relations.

Due to the critical pandemic situation in Southeast Asia an emergency ASEAN session is being ruled out and there might be a few teleconferencing or web-conferencing dialogues which might take place to address the situation under Vietnam’s chairmanship. However, it might not get the attention of international media. It seems that Chinese moves are to intimidate Vietnam into not issuing a strict statement against China and also abide by the Chinese diktats during the ASEAN summit which in all likelihood might get delayed. However, Vietnam has made plans for a strong communique against the Chinese aggressive tactics in SCS and given the prerogative of the ASEAN Chair Vietnam might even name China as the aggressor and the major challenge to peace in the contested region. Chinese presence in Union banks, which is northeast of Johnson Reef have angered the Vietnamese, because more than three decades ago (1988) China had killed several Vietnamese soldiers to claim the Johnson Reef. Five People’s Armed Forces Maritime Militia (PAFMM) ships have been tracked closer to the waters and have been stationed there for quite some time. 

China is planning for some kind of military action and it is apparent through the mobilization of fishermen militia, coastguards and navy as well as maritime aircrafts. Coercion tactics against smaller claimants would help China to negotiate bilaterally leaving countries like Vietnam to come for negotiations. However, Vietnam has been clear on its position that all negotiations must be done at the multilateral level. The tactics that China is employing to claim the waters around SCS as its territory and proclaim complete fulfillment of its nine-dash dream. China has been giving economic inducements to Laos and Cambodia through its BRI projects and also building ports and infrastructure like airstrips and military base to be used by its military force at times of crisis.  China has also deployed a dozen unmanned submersibles in the Indian Ocean to monitor activities of India, Japan and the US ships and submarines.

It appears that China wants Vietnam to budge to its coercive measures and must not issue a statement condemning its actions in SCS, but strategic thinkers and scholars believe that the ASEAN might get united before the ASEAN summit and issue a strongly worded statement against activities in the SCS. Of course, the chair of the ASEAN this timeis Vietnam which would make sure that the ASEAN communique lists Chinese activities as a big time threat. It is hoped that this year ASEAN Chairman’s statement would be similar to that of 2019 or may even use stronger adjectives.

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