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.
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.
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.