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International Law

Liability of China for Covid19 Outbreak, State Responsibility, and Jurisdictional Challenges

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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.

Conclusion

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.

Swargodeep Sarkar studied Law at the University of Calcutta & holds a Master in international law & organisations from Tamil Nadu Dr. Ambedkar Law University, Chennai, India. Currently, he is a PhD candidate in international law at the Indian Institution of Technology, Kharagpur. His research area includes.public international law, international investment law, peaceful settlement of international dispute.

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International Law

Crime of Ecocide: Greening the International Criminal Law

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In June 2021, an Independent Expert Panel under the aegis of Stop Ecocide Foundation presented a newly-drafted definition for the crime of ‘ecocide.’ The Panel consisting of 12 international lawyers proposed that the Rome Statute of the International Criminal Court (ICC) should be amended to include ecocide as the fifth international crime along with the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The inclusion of the crime of ecocide in the Statute will entitle ICC to investigate, prosecute, and try individuals accused of causing grave harm to the environment.

The term ecocide comprises the Greek word ‘oikos,’ meaning house or environment, and ‘cide,’ meaning an act of killing. Premised upon the term ‘genocide,’ ecocide means the significant destruction of the natural environment by human actions. In 1970, it was first used by Arthur Galston, an American biologist, at the Conference on War and National Responsibility in Washington DC. The term was further quoted by the Swedish Prime Minister Olof Palme in his opening speech at the 1972 United Nations Conference on the Human Environment (UNCHE) in Stockholm. Since then, multiple efforts were made to include ecocide within international law. Interestingly, it was adopted as an additional crime in the early drafts of the Rome Statute; however, later, it was dropped due to the lack of an adequate definition. If succeeded this time, it will be a significant victory for the environment since none of the existing international criminal laws secures it as an end-in-itself.

Definition of the crime of ecocide

The Panel has defined the crime of ecocide as, “For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

The definition comprises two thresholds that should be fulfilled to constitute a crime of ecocide. Firstly, there should exist a substantial likelihood that the ‘acts’ (including omissions) will cause severe and either widespread or long-term damage to the environment. In other words, along with the damages causing severe harm to the elements of the environment, such damages must have an impact on a wider geographical location or for an unreasonably longer duration.

It is appreciable that the Panel has widened the scope of the definition by incorporating spatial and temporal dimensions to its meaning. However, they have changed their position adopted in the previous legal instruments to employ a mix of conjunctive and disjunctive formulations in the definition. In addition to its severe nature, such harm could be either widespread or long-term to constitute a crime of ecocide. Thus, any severe and widespread activity, such as chopping down huge rainforests, could be attributed to ecocide. Similarly, any severe activity whose consequences prevail for a longer duration, for example, causing the extinction of a plant or animal species, could also amount to the crime of ecocide.

Instant reading of the first threshold indicates that the ecocide definition might include day-to-day human activities that contribute to greenhouse gas emissions and other environmental damages. It raises a question – Whether humans are environmental criminals? Though, it might be true that most human actions, directly or indirectly, are continuously degrading the ecosystem around us. However, the definition of ecocide is primarily concerned with the large polluters whose irresponsible activities at a massive level are a threat to the environment. Thus, to narrow down the ambit of the definition and identify criminal activities precisely, the Panel added a second threshold, that is, the ‘acts’ causing damage to the environment must be unlawful or wanton.

It means, only when the actions are either prohibited under national or international laws or indicate a reckless disregard for excessive destruction of the environment in achieving social and economic benefits will they amount to the crime of ecocide. The second threshold hints towards an anthropocentric approach of the definition and protects a range of human activities deemed necessary, desirable, and legitimate for human welfare. To determine the lawfulness of the acts, the actions should be seen with their potential social and economic values. The ecocide definition relies upon the principle of sustainable development to balance environmental destruction with human development and prohibits all destructive activities that outweigh their social and economic benefits. It also means that the definition places a ‘limited’ environmental harm outside the scope of the definition, which cannot be avoided for achieving social welfare that includes housing developments or establishing transport links.

The proposed definition is more concerned with the massive instances of environmental damages. It does not consider small ‘necessary’ ecological harms caused by day-to-day human activities. However, it is equally essential these negligible-looking destructive contributions of humans, made in their individual capacity, should not go unnoticed. These small contributions combined with each other also significantly impact the environment in the form of climate change, biodiversity loss, and other hazards. Thus, the reckless human lifestyle is a significant issue and needs to be regulated through some international code of conduct, if not as ecocide.

Undoubtedly, the proposed ecocide definition is a remarkable effort that should be appreciated for multiple reasons. First of all, the release of this definition indicates that the time has come to start penalizing environmental offenders and create deterrence so that such destructive activities can be minimized. It establishes the responsibility and accountability of big corporate houses and political leaders whose regular investments are causing substantial harm to the environment. Moreover, this definition founds its bases upon many core principles and concepts of public international law, international environmental law, international humanitarian law, and international criminal law. For instance, the principle of no transboundary harm, sustainable development, proportionality, and necessity are aptly referred to in the ecocide definition. Moreover, it also provides a sufficiently broad definition of the term ‘environment’ to primarily include any damage committed towards the earth, its biosphere, cryosphere, lithosphere, hydrosphere, atmosphere, and outer space.

Way Forward

Though the ecocide definition is a significant development, it still has to go a long way to be included in the list of international crimes. For this purpose, any of the 123 member states to the Rome Statute can officially submit the definition to the UN Secretary-General. The proposal has to be accepted for further consideration by the majority of the members through voting. Further, the text will be subjected to debates and deliberations and must be passed by a two-thirds majority of the members. Moreover, the member states need to ratify or accept the proposed text. Only after one year of such ratification or acceptance ICC may exercise its jurisdiction over the crimes of ecocide committed afterward. This entire process can take many years or even decades to get completed. It is also possible that the structure of the current definition might change in due course of its acceptance.

Today, it is unclear that whether this definition will succeed in amending the Rome Statute or not, but what can be said with certainty is that this definition will play a crucial role in building awareness and discourse around ecocide among the governments, corporate houses, professionals, and masses across the globe. With the pressing needs of humans and prevailing threats to the environment, it is the right time that the actions of the offenders should be regulated through the prism of international criminal law.

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International Law

Syrian Refugee Crisis: A Critical Analysis Concerning International Law

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Women and children at the the Turkey-Greece border at Pazarkule. © IOM/Uygar Emrah Özesen

The contemporary refugee law is primarily a product of the 20th century following the Second World War and the subsequent post-war refugee crises. The 1951 Refugee Convention on the Status of Refugees and its 1967 Additional Protocol are the noteworthy legal regimes. Although the definition of Convention 1951 continues to be the dominant definition, the regional treaties on human rights have continuously amended the definition in retort to changing circumstances and crises. The gap in the convention of 1951 is that it does not extensively define how the state parties must decide if a person shall compile with the definition of the refugee. The main objective of the modern refugee regime is that; at national and regional level, the individuals that flee their country due to threat of persecution must be protected under all circumstances.

The Civil War in Syria has lead many Syrians flee their own homeland where millions have fled and many have been internally displaced. Many of these existing refugee groups, if not most, live in desperation implying that refugees’ assistance and protection needs be addressed in host countries. States bear moral and ethical obligation towards ensuring the safety and protection of the individuals fleeing Syria. Western countries have also undermined and jeopardized their international commitment of protecting refugees’ human rights. The Regional Response Plan 2014 of United Nations High Commissioner for Refugees (UNHCR) is a $4.2 billion aid program for Syria. The plan mainly focuses on the financial assistance of the countries hosting Syrian refugees; where this assistance is certainly important; it does not seem to be an approach more equitable to share responsibility for refugees. The refugee convention and legal framework under International Law may be helpful in dealing with swift management of ongoing Syrian crisis. The study recommends for a larger responsibility to preserve refugees’ human rights and provide long term solutions through international law regimes with proper implementation mechanism.

REFUGEES

Under the International refugee law, Article 1(A)(2) of the 1951 Convention states that

“The term ‘refugee’ applies to any person who is outside the country of his nationality, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and is consequently unable or unwilling to avail himself of the protection of that country.”

As it was in the context of European Refugees escaping persecution prior to January 1, 1951, the concept had geographical and chronological constraints. Article (1)2 of the 1967 Protocol on Refugee Status abolished those temporal and geographical constraints.

PRINCIPLE OF NON-REFOULMENT AND FREEDOM OF MOVEMENT UNDER THE 1951 CONVENTION

Non-Refoulement on the whole mean non-return: it is not doable for individuals or foreign nationals to be returned by the host State to the country or place where they could be tormented, tortured or treated inhumanly and degradingly, in addition; where their life, liberty and freedom is threatened. The non-refoulement principle is the fundamental pillar of international law on refugees. It is an inherent component of 1951 Convention as regarded as a Customary International Law applied on every State irrespective of their ratification of the convention.

Article 26 of the Convention of 1951 states that the host States shall allow refugees to choose and move freely where they have taken refuge. Article 28 states that they must be provided with legal documents that would permit them to move freely anywhere wound their country of residence. The Freedom of movement is very important particularly in countries that host huge influx of refugees and have confined them in a particular area or refugee camps and have posed restrictions on their basic rights. The 1951 Convention also protects much other refugee rights for example educational rights, right of employment, justice and property rights.

The rights however are protected under the 1951 Convention and other International Treaties on the rights of refugees and more broadly the Human Rights but the refuges in their host countries are denied of their these basic rights and are often regarded as a national security risks to the state.

BACKGROUND OF THE SYRIAN REFUGEE CRISIS

Syria’s civil war has its origins in colonialism and the Iraqi War. The ethnic tensions and ongoing civil crisis date back to 2000 elections when Bashar Al Assad came in to power and the rising of Islamic State of Iraq and Syria (ISIS). Pro-democracy uprisings erupted in 2011 in response to persecution that were occurring in the Assad’s regime; the uprisings turned into a civil war. Syria by 2012 was entirely engulfed in that civil war and many had died by the end of 2015 by their own government. ISIS was part of the rebel forces, which created an atmosphere of terror. Civilians were subjected to transgressions; public executions and amputations became rampant. Religious minorities were also under great threat. In August 2013, a chemical warfare inflicted on its own people; as a result millions of Syrians were forced to flee their homeland and take hostage in the neighboring countries. Majority of them around 90% fled to Turkey, Jordan and Lebanon (neighboring countries) and around 10% made their way to Europe. While million fled the country, many thousands other are internally displaced and are still under great sufferings. According to a report of UN, approximately 70% of the Syrian population lacks basic necessities i.e., access to safe drinking water, extreme poverty and many children do not even go to school.

RECEIVING COUNTRIES AND THEIR COURSE OF ACTION

Despite their dire situation, Europe is hostile to Syrian refugees. They have put restrictions on their freedom of movement curtailing their rights granted by the international legal regimes and conventions. In Turkey, the refugees are often detained by the authorities and are forced to leave the country.  The Turkish authorities had flagrantly violated international laws; refugees are regarded as a security risk.  The ongoing conflict and instability in Syria have exacerbated the situation, forcing people to flee their homes and seek refuge in neighboring countries.

The existing literature includes number of records of International laws and the rights and obligations on refugees as well the host states but focus has been laid upon the crisis rather than the management of the crisis. In case of Syrian refugees, the existing literature highlights the historical context and ongoing situation of the crisis but has been unable to come to its solution with the help of International laws.

CONCLUSION

The 1951 Refugee Convention states that states should facilitate refugees’ naturalisation and assimilation to the greatest extent possible. States are obliged to provide legal documents to the refugees for the purpose of seeking asylum and obtaining the official status of refugees. The Refugee Convention seeks to require that the refugees must receive same public assistance as that of the nationals of the country and must be provided with financial assistance, property rights, and right of education and employment.  Both the 1951 Refugee Convention and the 1967 Additional Protocol are international treaties that mean they are binding on the signatories however the treatment of refugees and asylum seekers are considered to be a part of customary international law that is that the states that have not signed or ratified the conventions must also protect these rights of refugees. In the Syrian refugee crisis, many states have avoided their responsibilities and violated international laws relating to refugees by barring refugees from entering their respective territories and by claiming that the state has no jurisdiction over them by choosing the non-entrée approach keeping them apart of refugee law technically. However, in practice they do not meet the duties of the treaty.

To conclude, the essence of the research is that Burden Sharing is an as an intrinsic component of the refugee protection legal system framework and is critical and important in resolving the Syrian refugee crisis. Burden sharing is basically the distribution of responsibilities. In simple words it refers that specific arrangements must be made for the purpose of physical distribution of refugees. It is one of the main principles of International Refugee Regime. The documented origin of burden-sharing can be found in the preamble of the 1951 Convention. When addressing the Syrian refugee crisis in terms of international laws relating to refugees, it is pertinent to know that the existing legal frameworks in the countries hosting huge influx of the refugee crises do not incorporate many of the basic obligations of international law in relation to the rights and obligations of refugees, because none of these countries i.e., Turkey, Lebanon, or Jordan have ratified the 1951 Refugee Convention and the 1967 Additional Protocol. Syrian refugees have many rights that have been granted to them by the international conventions however, they are denied of their rights. This has made them vulnerable and entirely dependent on the financial aids and has increased illegal means of employment. The refugees are marginalized minorities who are facing troubles in integrating in the receiving countries.

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International Law

What have we learnt in the past century?

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It is 100 years since we were supposedly getting over the war to end all wars, World War I, and forming the League of Nations with the purpose of preventing such a conflict and slaughter happening again. Regrettably, the only good that came out of it was the proposal to form the League of Nations; it was not much more than an idea though otherwise stillborn and we needed another World War before something solid resulted, the United Nations with some teeth, although they need sharpening. It was the time that the Chinese Communist party was formed and has just celebrated its centenary. What have we done in the time, apart from multiplying ourselves by a factor of 3, and perhaps upsetting the planet on the way. There are exciting scientific advances, of course, some of which we must use to address the wasteful manner in which we live.

The 1920s and 1930s were times of turmoil, new ideas. Socialism in the forms of nationalism and communism, each with an end result of forming a ruling elite, who would brook little or no interference from their perceived mission. The damage from WWI caused a Depression in the developed world, many of them democratic in form, and this meant they paid not or were not able to pay enough attention to the looming Nazi power growing in Germany. In China, the communist movement was putting down roots, establishing itself and, in the Far East the colonies of British India and the Dutch East Indies, the elite of those nations were listening with sympathy to the socialism that was being preached in Europe.

The end of WWII saw the proponents of each doctrine, social/communism and free market capitalism/democracy sharpen their dividing lines which led to the Cold War between east and west. However, this is too simplistic; Britain, for example, after WWII voted in a Socialist Labour government, which promptly set about nationalising key industries and created the National Health Service, all the basics of socialism, central government control. The key industries didn’t prosper, lacking accountability and arguably fleetness of the free market and in time, after Thatcher, were returned to the private sector. This was not entirely successful as times changed, but the National Health Service has been deemed a success in the overall scheme of things, looking after a nation’s health. Perhaps it was different because it only required a social accountability.

Returning to the division of doctrine, emerging from WWII, this saw the sharp divide of Europe between, on the one hand the Lenin/Stalin communist, centrally controlled regimes of the USSR which had gathered within their scope, whether they liked it or not, many of the countries of Eastern Europe. On the other hand, there were the democracies of Western Europe, which were bolstered by the USA. Germany was divided into two parts but Berlin, the capital, which lay in the Soviet jurisdiction, was a separate entity managed by the four allies who had together opposed the Nazis, namely the USA, the USSR, Britain and France. This arrangement continued, not without its problems, until the new president, Kennedy, in 1961 made a declaration against communism which alarmed Kruschev, the Soviet leader by now since Stalin had died. A Wall was put up by East Germany/ USSR in Berlin in 1961, which became a symbol of the freedom of the west against the restrictions that the Soviet Union enforced. The East German communist government was alarmed at the very large number of their skilled citizens who were defecting to the west; the Wall brought the number down to a trickle, lasting until 1989 by when times had changed.

In the East, China at war end was in the grip of a communist movement that was fighting to overcome the nationalist forces of Chiang Kai Chek. The communists prevailed and the nationalists departed for the island of Formosa, today Taiwan, taking with them the Emperor’s ancient, valuable signatures of office, a bone of contention. Meanwhile, Japan was healing from the bitter defeat inflicted on it from WWII with the help of the USA and was showing its resilience in recovery towards becoming one of the fastest growing economies.

The first test of the new communist China came in the early 1950s in the Korean peninsula, where they wholeheartedly backed the forces of North Korea in their fight against the armies of the south, backed by the USA and its Allies from the western democracies, including Australia. A truce was signed after a few years of hard fighting, with no side obviously prevailing, and Korea was divided between North and South. To this day they have entirely different styles of government, the communist north being dependent on China with the people languishing in poverty while their ruling elite are well off, and the South being one of the Asian ‘tigers’ and one of the most successful democratic economies. The difference is glaring.

The next conflict between communism and a semi pro-democratic form of government, the Vietnam War in the 1960s, had different origins. It was originally part of an anti-colonial struggle to depose the French from their Indo-China possession, which also included Laos and Cambodia. The defining moment came when the French forces were beaten by the N. Vietnamese at Dien Bien Phu in 1954, which was a signal for the French to withdraw. The North Vietnamese government was led by Ho Chi Minh, who had also studied communism in Europe and been persuaded by its ideas.

The American government had been watching closely and were very worried that if all of Vietnam were to fall to communism, it would lead to the rest of Southeast Asia in time succumbing also. As the leader of the ‘free’ world the USA stepped in and gradually increased its presence to the point that it was perceived as full-scale war. The North Vietnamese devised a way in which they could frustrate the American troops by building a network of underground tunnels from which they could appear unexpectedly and avoid direct confrontation with the better armed American troops. The war did not seem to have an end, and either it had to be escalated or the troops withdrawn. The former route would require going to Congress in Washington and, since the war was becoming increasingly unpopular with the public this was not something that the US government would want to do. The Nixon government of the early 1970s decided on a strategic withdrawal and so the whole of Vietnam was taken over by the communist government of the north, the condition which the US had feared. But times had changed. The world was changing. Some countries were prospering and trading. The old communist guard was getting on, some dying.

In the meantime, India and Indonesia, each with current large populations and significant colonial histories, had leaders who had learned in Europe about socialism/communism. However, the countries they would be serving had large other complex problems to resolve. In India’s case they had to deal with its partition with a mainly Islamic country, Pakistan, on each flank. The Nehru led, mainly Hindu, faction had much sympathy with socialism and were suspicious of the west and western aid agencies such as the World Bank, which were not allowed in to help develop the country. India, for the rest of the century, moved slowly but did not make a move to either communism or the western democracies, perhaps because it inherited a system in which much power rested within the state governments. The national or federal government operated from Delhi in the form that the British left behind.

Indonesia spent the first few years from independence in 1947, establishing itself as a whole. Soekarno, the first president, was a gifted orator, and was a firm believer in socialism/communism, but was a poor administrator. The country had to fend off two break away actions in the 1950s in North Sulawesi and West Sumatra provinces, which were put down with some ferocity. An interesting development was Soekarno’s leading with the 1955 Non- aligned Movement which was held in Bandung. This firmly put him in the neutral camp, although his time in Europe had imbued him with left leanings. His inability to take the country out of poverty was greatly frustrating the political elite in Jakarta and when he was deemed to show his leanings towards communism, the Army with the elite had had enough. He had to go and forcibly resigned, bringing Soeharto to power. The USA, who had watched the moves carefully while, at the same time, being involved in Vietnam, were much relieved.

Soeharto made it clear that he had no liking for a communist form of government. He was also quick to realise that he needed the brains from the private sector to handle the economy. He appointed the Berkeley ‘mafia’, UC Berkeley trained economists to deal with the major problems of food, water and education to lift the country out of poverty which they did very successfully for thirty years. The country was run as a benign autocracy with a guided parliament which re-elected Soeharto every 4 years, until the Asian Financial Crisis struck and caused him to step down. However, well by then it was aligned with the western powers and was invited to join the G-17, the organisation of the world’s richest economies.

It should be added that the grouping of Southeast Asian nations – region that my colleague prof. Anis H. Bajrektarevic calls “the most multilateralised portion of Asia – Asia’s hope” – as the formed an alliance, ASEAN, in August 1967, to establish itself as an independent bloc, headquartered in Jakarta. Currently, there are now 10 countries in the bloc, originally five, with widely differing forms of government.

Come the latter part of the last century, other feuds, some centuries old, reared up to cause some alarm. They were not ostensibly part of the main struggle between rigid rules, centrally controlled communist regimes and the free market western economies, but the one of the Middle East involving several differing elements, on the face of it based on Judaism and its three offset branches, Jewry, Christianity and Islam. On his occasion the struggle had some of its roots in the Balfour declaration of 1917, endorsed in 1926 at a commonwealth conference, and the contrary non-acceptance of Israel after WWII, as a homeland for the Jewish people, by the Palestinians. It has widened out in a determination by a right-wing Islamic fundamentalist group to form a purely Islamic country, a caliphate. It fed off old rivalries and brought differing factions into conflict. It is not settled to this day, and Syria, a land of ancient civilizations, has been torn apart with a refugee crisis that has caused much discomfit in Europe. The politics of the Middle East are very complicated, variations of squabbles centuries old, and possibly unresolvable at this time. They, however, don’t seem to directly affect the main thrust of the proponents of the secular division between the democratic approach and communism to government. Although both the USA and Russia have an involvement, it is not their most important issue, although takes up time.

There are other disruptions in Africa and South America, but not greatly affecting the outcome of the main struggle between left and right. In much of Africa, where colonial power had held sway for many years and where a huge number of slaves had been shipped across the Atlantic to support the American and Caribbean plantations, little had been done to prepare the indigenous peoples to govern themselves. The extractive industries that were put in to take out minerals needed in Europe had systems in place which were devised to ship out the minerals to the controlling country. There was little or no attempt to better the country, in terms of education, infrastructure and skills development, where the extraction had taken place. The result was that the elite of the country, gaining independence, carried on the way things had been before independence and became hugely rich, while the poor just became poorer and poorer. A terrible legacy of colonialism! And certain countries in the north have, in the past few years, been severely affected by fundamental Islamic factions.

In the case of South (Latin) America, we have a mix of countries and the way they are run, significantly influenced by their Spanish or Portuguese legacy. The main problem is the growing and manufacture and the export of drugs and the emigration of people to the USA to get away from poverty. There is no major war ongoing although there have been attempts by some internal factions to take over a specific country for personal gain, which meets with the people’s resistance.

However, China is a large country with a centrally controlled communist regime in charge. In the past 30-40 years, with the passing of Mao Tse Tung and the accession of Deng the strict rigidity of the rules of government were eased and the economy started to grow. As a result, their economy has grown steadily, if not spectacularly at times, albeit from a comparatively low base and is now one of the largest in the world. They are not averse to taking new ideas from the west, sometimes openly but other times by stealth, which is of considerable concern to the west, which have established the norms, rules and rights of business. There was hope in the 1980s that they were changing and welcoming some democratic freedoms, but this altered in 1989 when a student demonstration was brutally quashed at Tienmanman square. The leaders had taken fright, things were getting out of control, and freedoms had to be curtailed and brought back under control. This was also a warning to the western democracies; there was only one way to do business in China and that was the Chinese way.

In 1997, the lease that the UK government held over the territories that encompassed Hong Kong was coming to an end and the territories were due to be handed back. There was some discussion on trying to extend the lease but this was really a non-starter. One of the terms that the British extracted in the departure agreement was that for the first 50 years the conditions which had been set up for the citizens of Hong Kong would be honoured. China agreed to approve the idea of ‘’one country and two systems’’. However, in recent times with Comrade Xi Jaoping feeling that his and the Chinese government’s power is on the increase he could ignore the agreement. There have been unsettling very large demonstrations in Hong Kong as Beijing turns the screw on democratic freedoms, and Hong Kong is brought in line with direct central government policy.

Furthermore, the government is trying to bring the Uighur people, who are of Islamic faith and live in Xinjiang to the west of China, the largest province, into line by brainwashing them. The Uighurs have  been treated to genocide, and are also used, not much better than slaves, to pick Xinjiang cotton, which is a significant and high quality product of this region. This is another worrying example of communist control, as George Orwell highlighted in his book entitled 1984. The UN and the American government have raised the issue strongly, but have been told it is a matter of terrorism!

In the past two decades or so the Chinese have ‘made’ small islands in the South China sea expanding their territorial waters illegally. The ASEAN countries have wakened up to this and showing signs of alarm as China are using these islands as military outposts. In short, they are testing the reaction of the Eastern ASEAN countries, who realistically are not strong enough to resist.  The USA are aware of this and watching carefully. It is still China’s government’s aim that Taiwan, R.O.C., comes under Beijing control.

The Chinese government would appear to have a policy to ensure that the country has the ability to widen its borders and, further afield, to secure by whatever means is most suitable the resources that the mother country requires. This would put it in a very strong position among all nations and supersede the work of past dynasties, justifying its central control. A communist Empire.

The other main country which espouses communism as per Leninism is, of course, Russia, which has always vied with the democracies of the west, unlike China which was rather left on its own, distance being a factor, until recent decades. After Kruschev, in the 1980s there was a time for a modicum of ‘honesty’ from the Russian government. They could not keep up with the economy of the USA with which they were attempting to compete. They released their hold on several European countries, such as Poland, Czechoslovakia and Hungary, and withdrew their border to a north-south line bordering Belarus and Ukraine, Estonia and Latvia and into the Black Sea. They retained a small piece of territory next to Lithuania which gives them a better outlet to the Baltic Sea and recently they took the Crimea illegally to secure a position in the Black Sea.

A few of the ‘freed’ countries have adjusted themselves in the years that have followed, for instance the peoples of Czechoslovakia decided to split along nationalistic lines into the Czech Republic and Slovakia. One has to draw attention to the former Yugoslavia, formed as a country of the southern Slavs, which was not part of the Soviet hegemony, which separated somewhat bloodily into its discrete parts, with the demise of Tito. This was the strongman who emerged from WWII and kept the disparate parts of Yugoslavia together and prevented the Soviets from adding it to the total taken. The countries that evolved from Yugoslavia were Serbia, Croatia, Bosnia Herzegovina and Kosovo.

The European Union has greatly enlarged since these countries became independent, could exercise their freewill, and confirmed their willingness to join the EU after invitation. The bloc now adds up to 27 member states and the centre of gravity which was firmly in the west, has shifted eastward significantly.

Russia has to deal with a significant, admittedly rather unwieldy, EU, as well as the powerful alliance, NATO, The North Atlantic Treaty Organisation, which was set up at the end of WWII to protect the western democracies with the involvement of the USA from any potential aggression of the USSR. Since the partial rapprochement of Russia in its adjusted format, over the past 3 decades, there is much less pressure on NATO. It doesn’t stop Russia trying to meddle with the former countries of the Soviet on their borders. Belarus has a regime that is close to the Russians, not necessarily the will of the people, and Ukraine, while looking west towards the EU, has had to fend off Russian aggression in recent times in which they lost Crimea. In the complex Middle East situation Russia offers support to parties that are opposed to western supported ones, for example Assad’s Syria. But overall, Vladimir Putin’s Russia does not pose as much of a long-term threat as the apparent threat offered by China. There is, from the people themselves, a wish to open up the country. However, this can be expected to take some time; change will be slow.

To return to the east, ASEAN as a bloc, partly modelled on the EU, is still feeling its way. In recent times, the military coup occurring in Myanmar has taken ASEAN by surprise. Their offer to mediate has been firmly rejected at the ASEAN annual meeting. This was to be expected as the military have been involved in actions against some of the Myanmar people almost continuously since Independence and in recent years the military have exercised utmost savagery against the Rohingya people. The country is of great strategic value to China and hence the Myanmarese can rely on their backing. Its value, apart from Myanmar’s considerable resources, e.g. the Jade mines of Kachin province, a nice earner for the military elite, lies in the fact that Myanmar provides a gateway to the Indian Ocean and thence access to China’s significant resources in Africa, where they have been slowly entrenching themselves for the part of half a century.

Looking ahead

Taking note of President Xi’s recent upbeat speech at the Centenary of the Chinese Communist Party, it is clear that the government of China feels confident that they are now in a strong position to push on with expanding their strategic aims. These will be pushed ahead by fair means or foul, honestly or not, by stealth if need be. If anyone dares to oppose them will get a ‘’bash’’ on the head! It is a warning to the western Allies. ASEAN should be concerned about the South China Sea.

Russia, in the next phase, will want to not upset matters too much and be reasonably content to have matters stay as they are. A significant revenue for them is oil supply to the EU. They have a growing mood in the populace that wants more freedom. This will be difficult to resist.

The Middle East has rumbled on for centuries. A solution does not appear to be likely in the short term although the majority of people just want peace so that they may live with a feeling of security. They cannot reach this position because the leaders feel they have some God-given mission to achieve first. There are pockets relatively peaceful, e.g. The Emirates.  

 The Liberal democracies of the west have some internal voices of dissent, but at the moment their biggest problem is dealing with a refugee crisis caused by the Syrian mess, and the peoples coming from Africa running away from poverty. These are all heading for Europe. The other area where there is a significant problem is the southern USA where there is an unrelenting movement of peoples coming from Central and South America, trying to escape poverty and/or poor government.

The problem has become larger in the past half century; the population has tripled without our becoming aware. The CO2, not surprisingly, has also increased which has alarmed some scientists, and the two issues may be related, because we breathe out CO2 as well as significantly use up more resources some of which, in turn, generate CO2. We must remember, however, that carbon dioxide is a building block of life; below 150 ppm the world starts dying, both flora and fauna. The world, whatever political persuasion, communist or democratic, has to take notice of the climate issue which is to be highlighted at the COP26 conference in November this year. It is interesting that the leading countries espousing these opposite forms of government, China and USA, are responsible for 36% of the CO2 output of the world, each of them, so far, shy of taking a leadership role. Will we see much progress on this issue if they don’t take a leadership role?

The Future

Science, building on what came before, has achieved almost unbelievable advances in less than a century. One of the foremost of them was finding the properties of the silicon chip, which led to the computer, becoming commercially available from the 1960s and thereafter aiding all aspects of scientific endeavour. Now we are looking at the digital age, and on into quantum mechanics and artificial intelligence. We have broken the barriers of space and there is a veritable limitless opportunity to be explored.

On the other hand, there are many more of us, 8+ billion as against 3- billion in the 1960s and we haven’t yet resolved the problems of poverty, pollution and paucity of some of our key resources, such as water, or why we have an apparent climate crisis.  The problems have only become bigger, which means the millennial and subsequent generations who will be brought up with the new sciences from a young age will have plenty to do. What sort of government will they have dictated to them or will they resolve a better system that embraces the better points of each, so long as there is adequate freedom of action?  

The world is changing; almost two thirds of its population already live in Asia and there is a shift in the ethnic balance. The United Nations is more important than ever; it has disappointed in not getting involved in a positive and robust way in certain disputes where a form of genocide has taken place, but they are constrained by their remit. Perhaps it requires a change of location from NY to reflect the changing population distribution and a time to review their raison d’etre.  

The new generation have inherited a number of problems but, at the same time, they have the skills and tools to deal with them. One can but hope they do use them and with common sense.

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