Russia’s unique geographic position and its own diverse culture twisted with Euro-Asian values have placed Russia as a country with a blend of civilizational values. Perhaps, the obvious question that one can raise is the exact validity of a civilizational perspective on deciding the international image of a country. In such a context the civilizational legacy embedded upon Russia throughout its history should be taken into consideration as the most pivotal fact in carving its global role. In particular, its history stemming from Orthodox roots that appreciated the centrality of the ruler and legitimacy of authority has always been Russia’s guiding points in its history. The values which are predominantly important to Western democracies such as individual liberty, freedom of expression and personal space have always been regarded with a sense of skepticism in Russia. Nevertheless, it was not because Russia does not value the liberty or human freedom, but it is important to understand Russia’s approach human rights, international law and many other global political practices have been born out of Russia’s civilizational uniqueness.
Especially, the Russian approach to international law and its existing anomalies with the Western notion of international legal standards is an interesting topic regardless of complex nature. The twisted geographic position that paved the path to create Russia a civilization thrived between Europe and Asia is a notable factor which kept Russia aloof from the political developments took place in Latin Europe. It is not an exaggeration to say that Russia was not touched by the effects of Westphalia till Peter the Great exposed Russia to Europe and the famous jurist of his court Peter Shafirov codified the first international legal text in Russian empire. However, the international legal scholarship and Russia’s role in European international law making such as Hague conferences 1899 and 1905 were completely uprooted by the events that took place in 1917. The state emerged in the aftermath of Bolshevik revolution was grounded on Marxian Leninist ideology which inherently rejected the faith in international law as an oppressive tool operated by capitalist states. However, the reluctance of admitting the universality of international law and its norms were withered away during the Stalinist period with the emergence of new jurisprudential school that accepted the applicability of international law in world socialist cause. As an example Soviet jurist Grigori Tunkin advocated for the peaceful co-existence of states through international law.
However, Russia and its juristic approach to international law have always taken rather ambivalent position regardless of its time space. Since the imperial Tsarist regime to the Soviet era, Russian had shown their civilizational uniqueness in adhering to international law. Many anticipated with some sanguine hopes Russia would return to Europe after the collapse of their communist empire and this hope was fuelled by sense of optimism shown by Boris Yeltsin when Russia officially joined European Court of Human Rights in 1998. Many pundits described it as an act symbolizing Russia’s yearn to embrace European values as she did under Peter in 18th century. Nevertheless, Russian position of international law in Post-Soviet space did not entirely transform into a lenient one. Especially, the crisis erupted after annexation of Crimea and the constant reports on human rights abuses have raised a big question mark before international legal practice in contemporary Russia. It seems to indicate that Russia’s historical uniqueness of being away from Latin Europe still shapes its legal thinking. For instance, Russia’s denial of admitting individuals as a subject of international law stands as a pivotal feature in post-Soviet confrontation with western international law. The abundant attention upon state sovereignty over any other rights has not been forsaken in post-Soviet era and perhaps in examining Russia’s role in the aftermath of Crimean crisis that one can regard Russia has fervently deviated from European liberal values. President Putin’s remarks at Federal Assembly in 2002 on upholding its state supremacy can be regarded as Russia’s state policy on maintain their vastness as it was preserved under Tsars and Communists unchanged. In addressing the Federal Assembly in 2002, President Putin said “All our historical experience testifies: such a country as Russia many live and develop in the existing borders only if it is a powerful state. Maintenance of the state in a vast space, preservation of the unique community of the people while keeping strong positions of the country in the world-that is not only enormous work”
Above mentioned statement made by Putin in 2002 aptly convinces why Russia is heavily concerned about her territorial sovereignty while keeping low enthusiasm over issues such as individual rights, human rights. The civilizational difference between Russia and the West has become double edged sword as Russia’s real civilizational position in international law appears ambiguous. In fact, we cannot entirely exclude Russia from European civilization and its intellectual influences, but in the same time the space to locate Russia in Asiatic geo political space gives less significant factors. This twisted dilemma has perhaps sharpened Russia as a unique civilization and the sui generis practice Russia upholds in international law can be regarded as an offshoot of this civilizational uniqueness. The argument I illustrated above regarding the reluctance of Russia throughout its history in denying to accept individuals as subjects of international law shows the country’s dogmatic views inevitably clashing with Western values and ironically this position has undergone some less changes in the annals of history since Tsarist regime to present Russian federation.
During the period of Soviet Union that any effort to uplift individual rights or admitting individuals as subjects of international law got nipped in the bud with vehement opposition of Soviet jurists. Soviet opposition pointed out brining individuals as a subject of international law would lead to undermine state sovereignty and propagate western liberal values. However, the stanch state centrism prevails in Russian international law scholarship even after the fall of communism convinces the continuity of Soviet tradition as an inherent part of modern Russian international law.
In seeking the civilizational roots of the Russian approach to international law, we need to further investigate the puzzling debate remains unanswered about Russia’s destined position in civilizational order. Contemporary Russia keeps one foot in European space and its institutional legacies reminding of Peter’s Europeanization, but simultaneously it keeps other foot in its unique civilization as a critique of European liberal values. The old aged antagonism between Orthodox Russia and Latin Europe seems to have resurrected from a different way as Russia still adheres to its Muscovy tradition of orthodoxy while Europe reciprocates it with a sense of scepticism. It is a fact and not even a conjuncture that notion of civilization has solidly made some strong impacts in Russia’s attitude to international 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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