As the saying goes “History repeats itself”, it is claimed that China knowingly as well as deliberately, failed to adhere to international health regulation in preventing novel Coronavirus (nConvid19). Therefore, China should be held responsible for thenConvid19 outbreak.IN 2002, SARS spread from Guangdong province of China. The SARS epidemic affected 28 nation-states by the year 2003. The total human casualty was 774 from the disease at that time. The world realized this human loss could have been avoided, had China not suppressed the happenings and vital public health information for several weeks. This ill-fated event led the World Health Organisation (WHO) to bring in the new International Health Regulation (IHR), adopted in 2005. World wide a total 1,310, 205 people have been affected so far and 72,578 have died from nConvid19 as the numbers of affected and death toll are rising exponentially. The doctors, health workers, sanitisation workers, police personnel, have been running against the time to save thousands of lives. Many scholars claimed that China’s conduct relating to nConvid19 outbreak violated IHR. And China should be held responsible for the wrongful or malafide acts before an international tribunal. This article will examine the possibility of holding China accountable for its deliberate inactions which could arguably violate the rules of IHR; can China be held responsible under general international law vis-à-vis under the rules of State responsibility; examining the possibility of taking China to an international tribunal for paying damages to countries which suffered an enormous loss in terms of human lives and economic slowdown.
Jurisdictional Challenges in International Adjudication
Generally, international dispute adjudication is a consent-based system. This is the leading challenge international dispute adjudication confronts with. The parties must agree that the dispute between them shall be submitted and adjudicated by an international tribunal. The consent maybe given in the treaty itself which is alleged to be violated or by concluding a compromise (a special agreement between disputants by which a dispute is submitted to international adjudication).
Article 75 of the WHO Constitution refers to the International Court of Justice (ICJ) for the settlement of disputes. It provides that any question or dispute relating to interpretation and application of the Constitution shall be referred to ICJ if the same is not settled by negotiation or by Health Assembly. But the disputant parties are free to choose any mode of dispute settlement instead triggering ICJ jurisdiction. In the Armed Activities (Case Concerning Armed Activities on the Territory of the Congo 2002) case, the ICJ observed that Article 75 of the WHO Constitution recognises the Court’s jurisdiction (Para 99 of the Jurisdiction and Admissibility of the Application). The Court held that it is empowered to deal with any question or dispute relating to interpretation and application of the instrument. Thus, any dispute concerning interpretation and application of the WHO Constitution can be settled by the ICJ adhering the due procedure laid down in Article 75. Recently, the ICJ in a case (Ukraine v, Russian Federation 2019) interpreted Article 22 of CERD (Convention on the Elimination of All Forms of Racial Discrimination 1969) that it gives alternative preconditions to the Court’s jurisdiction. Fulfilling either of them would trigger Court jurisdiction. If we interpret Article 75 of the WHO Constitution as ICJ resorted to in the case between Ukraine and Russia, the State(s) only has to satisfy negotiation condition. It does not need to satisfy World Health Assembly.
WHO Constitution contains the framework establishing the organisation, it includes the object and purpose, membership institutional structure and functions. Since it lacks substantive obligations concerning rules and regulations on public health. Thus, it is very much challenging how a State could frame complaint against China. In order to make a case a State needs to pose the violations rules of IHR as the question or dispute relating to interpretation and application of the WHO Constitution.
Violation of Rules of International Health Regulation and Possible Claims under WHO Constitution
IHR shall be universally applied in the global interest for the protection of the human race from the international spread of the disease. It is one of the principles incorporated under article 3 of IHR. WHO shall be guided by the principle of universal application of IHR along with adhering to other principles such as human dignity, fundamental freedom, human rights, and UN Charter.
A State is obliged under article 5of IHR to develop, strengthen, and maintain public health infrastructure which will help in detecting, monitoring, reporting, and notifying the events of the global health crises. Article 6 talks about the public health emergency of international concern (PHEIC). In the event of PHEIC, the State shall have to communicate through National IHR Focal Point, most efficiently, all the public health-related information and events taking place within its territory to the WHO within 24 hours of the assessment. The State(s) will keep WHO informed with accurate and detailed public health information, inter alia source and type of the risk, number of cases and deaths, measures taken to prevent spreading disease etc. Article 7 covers explicitly the unexpected or unusual incidents related to public health irrespective of origin or source. It imposes an obligation upon States to share public health information with WHO even the origin or the source of the disease is unknown to the State itself.
The theory of hatching nConvi19 in the laboratory of the city of Wuhan has been refuted by a group of researchers. Kristian Andersen, PhD, one of the authors of the paper, “The proximal origin of SARS-CoV-2, said “by comparing the available genome sequence data for known coronavirus strains, we can firmly determine that SARS-CoV-2 originated through the natural process.
A novel influenza-like illness was found in the body of workers and customers of the Wuhan city’s Huanan Seafood Wholesale Market in the mid-December 2019. On 30th December Li Wenliang, an ophthalmologist, at the Wuhan Central Hospital, revealed the information online. Although Wuhan public health authorities solicited information about the spreading of “pneumonia or unclear cause”, it suppressed Li Wenliang’s alarm on the nConvid19. Many medical professionals and journalists who tried to disclose information about nConvid19 were silenced and detained by the Chinese authorities. On December 31st, the Wuhan Municipal Health Commission wrongly claimed that there is no human to human transmission of nConvid19.
Furthermore, the Commission described it as seasonal flu which is preventable and controllable. Till 14th February, China waited to disclose that around 1700 healthcare workers have been found positive of nConvid19. It is more than apparent that Chinese government evidently suppressed and withheld the important public health information for almost two months. This may conclude that China intentionally as well as deliberately failed to communicate information with WHO in the event of PHEIC.
According to article 37 of the WHO Constitution, the Director-General of the WHO and the stuff shall be independent and impartial while exercising powers and functions. In order to remain independent and impartial, they shall not seek or receive instructions from any government or from any external authority. On the other hand Member States have been obliged to respect the international character of the Director-General including staff and not to influence them. An affected State could make a potential claim that China deliberately tried to influence the Director-General of the WHO and the stuff by allegedly withholding information, providing inaccurate or false information, and by not providing information in the crucial time.
Now, the difficulty ascends as to how do we link the violations of IHR with the violation of the WHO Constitution? The State could well invoke articles 21 and 22 of the WHO Constitution. Article 21 gives WHO authority to adopt regulations concerning sanitary and quarantine requirements, prescribing standards in respect to diagnostic procedures, nomenclatures with respect to disease, causes of death and public health practices etc. Article 22 talks about the procedure of coming into effect the regulations adopted by Health Assembly, rejection or reservation of the Member State to the regulation under article 21. Thus, it could appear that the dispute is one of the interpretation and application of the WHO Constitution since China’s alleged violations of rules of IHR indirectly violated articles 21 and 22 of the WHO Constitution. Some may argue that articles 21 and 22 are not substantive rules in nature but only procedural. They are only concerned with the Health Assembly’s authority to adopt and the procedure of coming into force of IHR. Thus, there is no substantive obligations imposed upon the Member States by these two articles.
Draft Articles on State Responsibility and Accountability of China
Analysing factual circumstances, prima facie it appears that conducts of China are wrongful and violated international law. If so, then what kind of remedies are available to the States? The Draft Articles on State Responsibility of States for Internationally Wrongful Acts 2001 (Draft Articles) was adopted by the ILC at its 53rd session in 2001 and submitted to the UN General Assembly. Although the Draft Articles is not legally binding on the States, the document is authoritative and has persuasive value. The ICJ often takes recourse to the Draft Articles in interpreting international law and solving disputes between States. The reason for the high persuasive value of the Draft Articles, mainly because most of the provisions have attained the status of Customary International Law (CIL). Draft Articles under article 1 says every internationally wrongful act of a State entails international responsibility of that State. Under Article 2, the wrongful acts are those actions or omissions which constitute breach international obligation and can be attributable to the State under international law. The conduct is attributable when a State organ commits it through the legislature, executive, and judiciary or any other functions irrespective of position it holds in the organisation of the State or character of as an organ in the central government or in a territorial unit of the State. Responsibility emanates from the local Wuhan authorities to the Chinese central government which are all the State organs whose alleged wrongful conducts could be attributable to China. Organs include any person having status in accordance with the internal law of the State. China’s alleged willful and intentional failure to share information expeditiously with WHO in the event of PHEIC in accordance with IHR constitutes breach of international obligations under article 12 of the Draft Articles. Even China is responsible for article 14 for the continuing breach of obligation. A combined reading of both articles reveals that a State is in breach of international obligation when its act or a continuing act is not in conformity with the obligation imposed on it. Legal consequences follow the international responsibility of a State. A study at the University of Southampton revealed that timely intervention one, two, or three weeks earlier in the crisis could have reduced the cases by 66%, 86%, and 95% respectively. Thus, had China intervened responsibly and timely, the number of people affected could have been reduced. The State is under obligation to make full reparation for both material and moral injury caused by its wrongful acts under article 31. The ICJ in the Corfu Chanel case (1949) held that no State might knowingly allow its territory to be used for acts contrary to the rights of the other States. Simply speaking, China is under obligation that individuals within its territory do not cause harm to the rights of the other States. The reparation shall be in the form of restitution, compensation, satisfaction, and even in the form of assurance of non-repetition of the wrongful act. Restitution as a form of reparation means, the State is responsible to re-establish the situation which existed prior to the commission of the wrongful act. If restitution is not possible or not a suitable form of reparation in a particular case, the injured State shall be entitled to compensation which will cover financially assessable damage. If both types of reparation fail to make good, the wrongful State shall make good in the form of satisfaction which may consist of an acknowledgement of breach, an expression of regret, or a formal apology.
Taking a State to the ICJ or any other international tribunal is a herculean task before an aggrieved State since as pointed out above that the international adjudication is consent-based. It is highly unlikely that China would submit the dispute before an international forum. The challenge is more painstaking when the perpetrator State is powerful and influential militarily and diplomatically. One must not forget that China holds permanent membership of the UN Security Council, which enables China to invoke veto power to block events once its interest is at stake. This is what P5 members of the UN Security Council often does (did) as revealed by history of UN. Even if China agrees or the ICJ finds jurisdiction over the dispute and finds China responsible for nCovid19 outbreak, the contest still be there in implementation of the judgment. The decisions rendered by the ICJ shall be obeyed willingly by the disputant parties. The UN Security Council as a custodian of world peace plays a vital role in the implementation procedure of the ICJ decisions. Article 94 provides that in case of failure or non fulfilment of the obligation under the judgment, any party may recourse to UN Security Council and the Council will take necessary steps inter alia recommendations, or measures to be taken by the disputant to enforce the judgment. Thus, as a P5 member, China has the power to block any action that the UN Security Council might take to give effect to the ICJ judgment. Another less vigorous way to hold China responsible is resorting to advisory jurisdiction of the ICJ. Invoking the advisory jurisdiction of the ICJ does not need consent from the disputant parties. Under Article 96 of the UN Charter UN General Assembly, UN Security Council, other organs of the UN and specialised agencies that maybe authorised by the UN General Assembly may seek advisory opinions of the ICJ on any legal question or any legal question arising within the scope of their activities (for other UN organs and specialized agencies). The problem with the advisory opinion of the ICJ is, it lacks binding authority. Thus it leaves the enforcement of the decision on the disputant States and the UN General Assembly good faith and civilized behaviour.
Is Antarctica the new Eldorado? The sixth continent between claims and international law
December 1, 2019 marked the 60th anniversary of the signing in Washington of the Antarctic Treaty, the main legal instrument for managing practical activities and regulating interstate relations in the territory 60°parallel South.
On May 2, 1958, the U.S. State Department sent invitations to the governments of Australia, Argentina, Belgium, Chile, France, Japan, Great Britain, New Zealand, Norway, the then South African Union and the USSR for the International Antarctic Conference. It was proposed to convene it in Washington in 1959. The group of participants at the Conference was limited to the countries that had carried out Antarctic projects as part of the International Geophysical Year (IGY) (July 1957-December 1958).
The Soviet Union supported the idea of convening a Conference. In a letter of reply, the Kremlin stressed that the outcome of the Conference should be the International Treaty on Antarctica with the following basic principles: peaceful use of Antarctica with a total ban on military activities in the region and freedom of scientific research and exchange of information between the Parties to the Treaty.
The Soviet government also proposed expanding the group of participants at the Conference to include all parties interested in the issue.
In those years, the international legal resolution of the Antarctic problem had become an urgent task. In the first half of the 20th century, territorial claims to Antarctica had been expressed by Australia, Argentina, Chile, France, Great Britain, New Zealand and Norway.
In response to the Soviet proposal, the United States kept all the territorial claims of various countries on the agenda, but it undertook to freeze them. Russia, however, believed that third parties’ territorial claims had to be denied. At the same time, the position of both States coincided almost entirely insofar as the right to make territorial claims for the ownership of the entire continent could be retained only as pioneers.
The USSR relied on the findings of the expedition by Russian Admiral F.G.Th. von Bellingshausen and his compatriot Captain M.P. Lazarev on the sloops-of-war Vostok and Mirnyj in 1819-1821, while the United States relied on the explorations of N.B. Palmer’s expedition on the sloop Hero in 1820.
The Conference opened on October 15, 1959 in Washington DC. It was attended by delegations from twelve countries that had carried out studies as part of IGY’s programmes in Antarctica.
The Conference ended on December 1, 1959 with the signing of the Antarctic Treaty. This is the main international law instrument governing the planet’s Southern polar region.
The basic principles of the Treaty are the following: peaceful use of the region, as well as broad support for international cooperation and freedom of scientific research. Antarctica has been declared a nuclear-free zone. Previously announced territorial claims in Antarctica have been maintained but frozen and no new territorial claims are to be accepted. The principle of freedom to exchange information and the possibility to inspect the activities of the Parties to the Antarctic Treaty have been proclaimed. The agreement is open to accession by any UN Member State and has no period of validity.
Over time, it has been proposed that the political and legal principles of the Treaty be further developed in the framework of regularly convened consultative meetings. Decisions at these meetings can only be taken by the Parties to the Treaty that have a permanent expedition station in Antarctica.
All decisions are taken exclusively by consensus, in the absence of reasoned objections. The first Antarctic Treaty Consultative Meeting was held in the Australian capital, Canberra, from 10 to 24 July 1961.
Until 1994 (when the 18th Consultative Meeting was held in Kyoto), meetings were held every one or two years, but since the 19th Meeting held in Seoul in 1995 they have begun to be convened on a yearly basis. The most recent Meeting, the 42nd one, was held in Prague from 11 to 19 July 2019. The 43rdConsultative Meeting will be hosted in Paris on 14-24 June, 2021: the suspension of the Meeting that was to be held in Helsinki from 24 May to 5 June 2020 was due to the Covid-19 pandemic. The 17th Meeting was held in Venice, Italy, on November 11-20, 1992.
The main decisions of the Meetings until 1995 were called recommendations and since 1996 ATCM measures. They come into force following the ratification procedure by the Consultative Parties. A total of 198 recommendations and 194 measures have been adopted.
Over sixty years, the number of Parties to the Antarctic Treaty has increased from twelve founders in 1959 to 54 in 2019. These include 29 countries in Europe, nine in Asia, eight in South America, four in North and Central America, three in Oceania and one in Africa.
The number of Consultative Parties to the Treaty that have national expeditions in Antarctica keeps on growing: Australia, Argentina, Belgium, Brazil, Bulgaria, the Czech Republic, Chile, the People’s Republic of China, (South) Korea, Ecuador, Finland, France, Germany, Japan, Great Britain, India, Italy, Norway, New Zealand, the Netherlands, Peru, Poland, Russia, Spain, South Africa, Sweden, Ukraine, Uruguay and the United States of America.
The remaining 25 Antarctic Treaty countries with Non-Consultative Party status are invited to attend relevant meetings, but are not included in the decision-making process.
In the 1970s and 1980s, the desire to join the Treaty was reinforced by the desire of many countries to develop Antarctica’s biological and mineral resources. Growing practical interest in Antarctica and its resources led to the need to adopt additional environmental documents.
During that period, recommendations for the protection of Antarctica’s nature were adopted almost every year at the Consultative Meetings. They served as starting material for the creation of three Conventions, which protect the natural environment: 1) the Convention for the Conservation of Antarctic Seals; 2) the Convention for the Conservation of Antarctic Marine Living Resources; and 3) the Convention for the Regulation of Antarctic Mineral Resources.
Later, based on the recommendations and Conventions adopted, the Protocol on Environmental Protection to the Antarctic Treaty was drafted. It became an environmental part of the Treaty and was signed on October 4, 1991 for a period of 50 years at the Madrid Consultative Meeting – hence it is also called the Madrid Protocol.
According to the Protocol, Antarctica is declared a “natural reserve for peace and science” and should be preserved for future generations. After 1991, the new countries that adhered to the Treaty started to show interest in participating in large-scale international research projects on global climate change and environmental protection.
Considering the above, Antarctica can be described as a global scientific laboratory: there are about 77 stations on the continent, which have supplied their scientists from 29 countries. They explore the continent itself, the patterns of climate change on Earth and the space itself.
However, how did it happen that the territories of the sixth continent became the target of scientists from all over the world?
In 1908, Great Britain announced that Graham Land (the Antarctic peninsula south of Ushuaia) and several islands around Antarctica were under the authority of the Governor of the Falkland/Malvinas Islands (claimed by Argentina). The reason for this was that they were/are close to the archipelago.
Furthermore, Great Britain and the United States preferred not to acknowledge that Antarctica had been discovered by the Russian explorers Bellingshausen and Lazarev. According to their version, the discoverer of the continent was James Cook, who saw the impenetrable sea ice of Antarctica, but at the same time confidently insisted that there was no continent south of the Earth.
A dozen years later, the appetites of the British Empire grew and in 1917 it decided to seize a large sector of Antarctica between 20° and 80°meridian West as far as the South Pole. Six years later, Great Britain added to its ‘possessions’ the territory between 150°meridian East and 160°meridian West, discovered in 1841 by the explorer Capt. J.C. Ross, and assigned it to the administration of its New Zealand’s colony.
The British Dominion of Australia received a “plot of land” between 44° and 160° meridian East in 1933. In turn, France claimed its rights to the area between 136° and 142° meridian East in 1924: that area was discovered in 1840 and named Adélie Land by Capt. J. Dumont d’Urville. Great Britain did not mind, and the Australian sector was not disputed by France.
In 1939, Norway decided to have a piece of the Antarctic pie, declaring that the territory between 20° meridian West and 44° meridian East, namely Queen Maud Land, was its own. In 1940 and 1942, Chile and Argentina entered the dispute and the lands they chose not only partially overlapped, but also invaded Britain’s “Antarctic territories”.
Chile submitted a request for an area between 53° and 90° meridian West; Argentina, for an area between 25° and 74°meridian West. The situation began to heat up.
Furthermore, in 1939, Germany announced the creation of the German Antarctic Sector, namely New Swabia, while Japan also formalised its claims to a substantial area of Antarctic ice.
Again in 1939, for the first time the USSR expressed – as a premise and postulate – that Antarctica belonged to all mankind. After the end of World War II, all legal acts of the Third Reich were abandoned and Japan renounced all its overseas territorial claims under the San Francisco Peace Treaty. According to unofficial Japanese statements, however, the country claims its own technical equipment: according to its own version, the deposits lie so deep that no one except Japan possesses the technology to recover and develop them.
By the middle of the 20th century, disputes over Antarctica became particularly acute: three out of seven countries claiming the lands were unable to divide up the areas by mutual agreement. The situation caused considerable discontent among other States, and hampered scientific research. Hence it came time to implement that idea, the results of which have been outlined above.
In 1998, the Protocol on Environmental Protection was added to the Antarctic Treaty. In 1988, the Convention on the Management of Antarctic Mineral Resources had also be opened for signature, but it did not enter into force due to the refusal of the democratic Australian and French governments to sign it. That Convention, however, enshrined great respect for the environment, which laid the foundations for the Protocol on Environmental Protection. Article 7 of that Protocol prohibits any activity relating to mineral resources in Antarctica other than scientific activity. The duration of the Protocol is set at 50 years, i.e. until 2048.
Most likely, its period of validity will be extended, but we have to be prepared for any development of events. Earth’s resources are inevitably running out and it is much cheaper to extract oil and coal in Antarctica than in space. So an oxymoronically near distant dystopian future awaits us.
The Hathras Case, Caste Discrimination in India and International Law
Over six months ago in September 2020, a 19-year-old Dalit woman was brutally gang-raped by the “upper-caste” men in Hathras district of Uttar Pradesh, and a month later succumbed to her injuries in a hospital in Delhi. Despite insidious efforts of impunity by the state, the accused were arrested. However, the family including other Dalits in the village continue to experience the endemic of caste discrimination. The village remains divided along the caste lines with “lower-castes” living on the periphery struggling to fight against the pernicious system.
Caste discrimination and violence emanate from the orthodoxy of the Indian caste system that is held as sacrosanct. It refers to the classification of people into four groups or Varnas: the Brahmins on the top, which consists of priests and teachers, followed by the Kshtriyas or the warriors, the Vaishiyas or the merchants and the last group the Shudras considered as outcastes. Shudras traditionally referred to as ‘untouchables’, now collectively known as Dalitsare singularly positioned at the bottom of the caste hierarchy. They are marginalised on the pretext of maintaining status quo in the society and are forced to live under deplorable conditions with little or no access to health, education and sanitation. Their socio-economic vulnerability and lack of political voice increase their exposure to potentially violent situations while simultaneously reducing their ability to escape.
In the similar vein, the question that writ large is, how long would the scourge of the caste system traumatise the Dalit community that makeup16.2% of India’s total population. Being relegated to the bottom of the class, caste and gender hierarchies, they form a majority of the landless labours and manual scavengers and their vulnerability is appropriated by those in power. The reason why the Hathras Case allured a lot of controversies was that the state agencies played an essential role in shielding perpetrators and launching fake propaganda of victimisation. This reaffirmation of the upper-caste hegemony by the state violates the domestic law as well as India’s obligation under International law. Hence, it becomes imperative to understand the relationship between caste and racial discrimination against the backdrop of international law.
Hathras Case and Violation of International Law
Violence against Dalits especially women is used as a tool to inflict political lessons and crush dissents and labour movements for transgressing the caste hierarchies. The Hathras Case of Uttar Pradesh is one of such adversities that reveal a perilous side of the Indian social apparatus and the subsequent pattern of impunity. Despite the constitutional guarantee against any form of discrimination specified under the domestic law and the ratification of international covenants on racial discrimination, gender equality and human rights. Such incidents underscore India’s louche stand against discrimination both nationally as well as internationally.
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965 as substantiated by India, under its Article -1 states that discrimination based on descent falls under the ambit of ‘racial discrimination’. Hence, applies to matters of caste discrimination also. In the Case of Hathras, there was a serious breach of the convention on various grounds by the police and the government. For instance, the Police did not take cognisance of the rape for eight days after the incident despite the request of the family and was reluctant to help when the victim was taken to the police-station .The family was also exhorted by the district magistrate to change their statement. This misconduct goes against Article 5(a) and Article 5(b)of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) which reads that victim should receive equal treatment before the organs administrating justice and must receive protection against violence respectively. Also, the lack of effective remedies provided by the state breaches Article 6 of the convention.
Further, the police allegedly cremated the victim without the involvement of her family members. It breached Article 2, para 2 of the CERD, which obligate state parties to take measures for prevention and enjoyment of human rights. The Government and police wrought an abhorrent pattern of impunity and State-sponsored Propaganda as they adamantly declined to accept if rape was actually committed simply based on the fact that the forensic report revealed the absence of semen in the body of the deceased. This was approbated despite the fact that forensic evidence can only be found up to 96 hours after the incident and that sample for the case was collected after eleven days. Thus, such impunity to the ‘upper caste’ men by the state organs seriously violates Article-2 and 4 of CERD that state shall not discriminate against the victim and condemn any sort of propaganda based on superiority of the caste respectively.
Such deleterious conduct by the state is not only in dissonance with the Convention on the Elimination of All Forms of Racial Discrimination but also tramples upon various instruments of International Human Rights Law especially the United Nations Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). It also grossly violates the Convention on the Elimination of All Forms of Discrimination against Women. Dalit Women stand at a point of intersectionality in the society, their subordination and violence unleashed upon them result from both sexual and caste discrimination. Hence, this ‘double jeopardy’ thesis exacerbates their plight.
These actions of the transgression of international law invite state responsibility as codified by the International Law Commission. The Commission elucidates that any such act is attributable to the state if it is committed by State organs, whether central or federal. The International Convention on All the Forms of Racial Discrimination also reflects on the application of domestic law. As Supreme Court of India has held in the case of Karmaa Dojree v. Union of India that the provisions of the Convention are of significance to protect fundamental human rights and must be read into constitutional guarantee against racial discrimination. Thus, what makes the Hathras Case, one of the most controversial cases is the grave violations of international responsibilities and demonstration of ‘upper-class hegemony’ by the state and its agencies.
Caste Discrimination as Racial Discrimination
A major point of contention while ruminating on caste discrimination as racial discrimination is, albeit in the language of international law caste discrimination is seen as the violation of the civil, political, social, economic and cultural rights, there is an absence of its legal recognition.
In 1996, India for the first time highlighted that the term ‘descent’ mentioned under Article 1(1) of the convention does not cover the domain of caste, thus, schedule castes and schedule tribes in India does not come under its purview. However, CERD in its Concluding Observations(2007) stated that the term ‘descent’ not only refers to ‘race’ but also include discrimination against members of community based on various forms of social stratification. The Human Rights Council in its report conducted by the Sub-Commission on the Promotion and Protection of Human Rights (2009) considered caste discrimination as‘ discrimination based on work and descent’. Likewise, the report of the Special Rapporteur on Minority Issues (2016) attempted to explicate caste discrimination and emphasised that ‘while many caste-affected groups may belong to the same larger ethnic, religious or linguistic community, they often share minority like characteristics, particularly their non-dominant and marginalised position and the historic use of the minority like framework to claim their rights.’ This informs us that international law categorically view caste discrimination as a segment of racial discrimination. However, India continues to deny the applicability of the term ‘descent’ as inclusive of caste. The lacuna in the recognition of ‘caste’ as a separate identity and India’s denial despite negation is often considered to have a detrimental impact on a significant population of the country.
Caste- based violence similar to the case of Hathras lead to gross breach of international law and yet less often attract state responsibility. This is due to the fragmented legal response and absence of explicit reference to caste discrimination in international law. It is asserted that a comprehensive legal response could help overcome these challenges, not to say that the application of international law would ensure complete protection against caste-based discrimination and violence. But, at least could provide for international solidarity and subsequently better solutions.
The Hathras case of Uttar Pradesh like other similar cases of violence against Dalit women unveils the perennial notion of caste discrimination and the abhorrent pattern of state impunity to the perpetrators. These acts of caste discrimination are strongly condemned under international law, to which India has often reflected on quite evasively. Notably, various international conventions enunciating international law refers to such discrimination as a violation of human rights, albeit have not specifically mentioned it and has continued to reaffirm that discrimination based on descent includes discrimination based on caste. Hence, Dalits face huge challenges at the international level to draw adequate attention to caste discrimination and consequently bear perpetual atrocities at the national level. Therefore, Dalits aspire for international solidarity to consider varying factors of discrimination and a comprehensive legal response to bring caste-based discrimination into international focus.
Intellectual Property on Covid-19 needs to be shared
The development of Covid-19 vaccine was supposed to be a global good which will be fairly distributed among the developed and the developing world. But the politicization and the increasing nationalization of the vaccine increased the vulnerability of the poor countries to the Covid-19 global pandemic. Everyday tens of millions of people are getting infected and tens of thousands of people died in the developing countries due to this deadly virus. Behind each death, there is a story of a loved one, shattered dream of a family and the increasing human insecurity of the members of the deceased. Against such a backdrop, vaccination to all is necessary to prevent the Covid-19 pandemic.
Ironically, Covid-19 vaccine has become a new frontier of diplomacy, and a new geo-political tool for some rich countries along with a profit-making tool for some capitalist pharmaceutical companies through the monopolization of the vaccine. All people need to be vaccinated to address the devastating impacts of the deadly virus. The recent example of India clearly shows the deadly outcomes of the Covid-19 virus. Bangladesh, which is one of the densely populated countries, can experience the same devastating outcome as India if all people are not vaccinated as early as possible. In fact, in a country like Bangladesh, where more than 165 million people live within 1, 47, 570 km area, maintaining social-distance becomes really a daunting task.
History suggests that mostly the people in the poor countries die when any pandemic emerges as those poor people have always been deprived of the vaccinations. In this context, the WHO Director-General notes that ‘40 years ago, a new virus emerged and sparked a pandemic. Life-saving medicines were developed, but more than a decade passed before the world’s poor got access to them. 12 years ago, a new virus emerged and sparked a pandemic. Life saving vaccines were developed, but by the time the world’s poor got access, the pandemic was over’.
The same history is going to be repeated in the case of Covid-19 vaccine. Ironically, rich countries, i.e. the US, UK, EU, Canada have bought more Covid-19 vaccines than they actually need which is making the availability of the vaccine for the poor countries impossible. For instance, the EU has ordered 1.6 billion doses for its adult population of roughly 375 million. According to the order, even after full vaccinations, there will be a surplus of around 525 million full vaccinations. The UK has ordered 219 million full vaccinations for its 54 million adults while Canada has ordered 188 million full vaccinations for its 32 million adults. It means that for UK, there will be a surplus of 165 million full vaccinations while for Canada there will be a surplus of 156 million full vaccinations. The United States did not export even a single dose of vaccine. In one hand, the rich countries are hoarding the vaccines while the poor countries are dying due to lack of vaccinations. On the other hand, the pharmaceutical companies and the Western vaccine producing countries are against the IP waiver of Covid-19 vaccine which is ironic as it is high time to ensure IP waiver of Covid-19 vaccine to save tens of marginalized, poor people in the developing world. Unfortunately, Bill Gates has said ‘no’ to vaccine production in the developing world. Gates preferred the monopoly of the vaccine which described him as a ‘vaccine monster’(Zaitchik, 2021). It is noted that ‘Gates has chosen to stand with the drug companies and their government patrons’ (Zaitchik, 2021). Dozens of developing countries including Bangladesh, India, South Africa are asking repeatedly for the patent waiver so that they can also produce the vaccine and save their population from the deadly pandemic.
In fact, Covid-19 vaccine developed as a global good to save the humanity from the deadly virus. Thus, the dedication and commitment of the scientists to develop the vaccine needs to be appreciated. But when that vaccine is monopolized for some pharmaceutical companies, there is nothing more ironic than that while people are dying in other parts of the world. What an unfair world it is!
In this critical time of Covid-19 global crisis, no one is safe until everyone is safe. Thus, instead of preserving Covid-19 vaccines, rich countries need to ensure vaccines to all in the world irrespective of nationality, colour, creed, or class. This treatable and preventable disease needs to be prevented which requires strong and definitely humanitarian global political leadership. Thus, IP waiver on Covid-19 vaccine, technological sharing and economic cooperation between the developed and developing world becomes necessary to address this pandemic collectively. As Dr Jeremy Farrar warns (April 28, 2021) that ‘If countries who can afford to share choose not to, this pandemic will drag on, resulting in more deaths, suffering and economic hardship. We’re in danger of creating a fragmented, unequal world of haves and have-nots, where it will be far harder to come together and address the shared challenges of this century’.
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