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International Law

When Life Imitates Art

Arlene J. Schar

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Authors: Arlene J. Schar and Dr. David Leffler*

The movie Wag the Dog was released a generation ago, one month before a presidential scandal which invited comparisons between that film and the reality of that time. Now, 23 years later, we find ourselves in the midst of yet another presidential scandal; one which has made this movie once again relevant to our times.

The premise, which hits uncomfortably close to home, is about a war fabricated to deflect attention from a president’s indiscretions. War is described as “show business” with all the trappings: slogans, nicknames, theme songs, and even merchandizing to show solidarity; all orchestrated by a media intent on projecting a party’s “alternate reality” on an unsuspecting public.

However war, whether fabricated or not, is serious business and there are casualties. Iran has recently admitted to unintentionally shooting down a Ukrainian passenger jet, blaming human error and “US adventurism” for the crash. Human error can happen, and can be especially heightened during times of war. 176 lives were lost from this particular error; how much greater would have been the loss of life if this were on a nuclear scale.

The 2014 Danish documentaryThe Man Who Saved the World tells the story of Stanislav Petrov, a former lieutenant colonel of the Soviet Air Defence Forces and his role in preventing the 1983 Soviet nuclear false alarm incident from leading to nuclear holocaust. Thankfully in this case human error was successfully averted. 

Human error is something that will always be present; and so we have to ask ourselves: is it worth it, to life and to our planet, to entrust such terrible war-making forces to fallible humans? The obvious answer is no, and yet we do. What can we do to change our ways, to guarantee our safety in an uncertain world?

In an ideal world, there would be no enemies, hence no war: war would be prevented by militaries before it occurs – Victory before War. There is a little known scientifically proven way to accomplish this, by using a brain-based technology known as Invincible Defense Technology (IDT). IDT incorporates non-religious advanced techniques of Transcendental Meditation (TM) which, when practiced twice a day in large groups, has the effect of raising the consciousness of all those within its field. 

Extensive peer-reviewed scientific research has repeatedly confirmed that when large groups of experts practice these advanced techniques together, a powerful field effect is generated which affects the surrounding population. This results in measurable decreases in war deaths, terrorism, and crime whenever IDT is utilized.

IDT was previously utilized in Washington D.C. over a two-month period in the summer of 1993, where 4000 meditators gathered for an experiment to lower crime. The result, as documented by an independent board of criminologists, was a 24 percent reduction in criminal violence. This profound reduction in social stress also influenced the public approval of the US president, which suddenly changed from a negative trend to a positive trend, as predicted (Reference: Social Indicators Research, 1999, 47: 153-201).

A study published in May 2019 in Studies in Asian Social Science6(2), 1-45, found that IDT implementation by students trained in the advanced TM techniques resulted in a 96% decline in sociopolitical violence in war-torn Cambodia as compared to violence in the preceding three years.

The Global Union of Scientists for Peace (GUSP) advocates IDT as a cost-effective, simple means to rapidly reduce the societal stresses held to be the underlying cause of terrorism and war.

Military and civilian groups in South America, Africa, and parts of Asia are currently field-testing this approach by creating Prevention Wings of the Military, using IDT to reduce crime, quell violence, create prosperity, prevent the rise of enemies, and create the conditions for lasting peace. 

No nation can afford another war, and no country can feel safe as long as nuclear weapons are available to be deployed, whether intentionally or by human error. It is time for all of us to consider embarking on a new course of action, utilizing IDT to raise the global consciousness so that positive solutions can be found which do not involve war.

Because our next war may well be our last.

*Dr. David Leffler served as an Associate of the Proteus Management Group at the Center for Strategic Leadership, US Army War College. Currently, he serves as the Executive Director at CAMS.

Arlene J. Schar has served as Dr. Leffler's Executive Assistant at the Center for Advanced Military Science (CAMS) http://www.StrongMilitary.org since 2015. She has edited and co-authored many of Dr. Leffler's articles.

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International Law

Curious Case Of Nirbhaya And International Court Of Justice

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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 HerschLauterpacht, 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 La Grand 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). 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 first optional protocol to the ICCPR comprehensively set out the procedure for individual complaint mechanism. The HRC also provides general comments to clarify the contents of ICCPR’S provisions. The Nirbhaya convicts as a final hope, could have resorted to individual complaint mechanism rather than the more state-centric and rigid apparatus under ICJ. The Nirbhaya 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 frame an 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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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)

***

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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