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UNSC: Implications of widening Permanent Membership on its Effectiveness

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With the emergence of regional and global powers, the call for increasing the permanent seats of the United Nation’s Security Council is becoming louder. On real grounds the UNSC is the only body of the United Nations which can take decisive actions and give out rulings on certain issues, especially the executive permanent members (Russia, China, United States, Britain and France). The permanent members have the power to Veto, which the permanent members have been known to use from time to time to stop the council’s decisions that are against their will. This veto power and the structure of UNSC is considered as discriminatory and controversial as the UN gives the status of equality to all the member states and UNSC is a question mark on that status.

Many feel that there is a need of reforms in the UNSC and that new permanent members should be added to the UNSC as they deserve to become the permanent members. According to the proponents of expansion and reforms of UNSC the current permanent members do not fairly represent the world order. Due to this, many states are seeking permanent membership of UNSC which will have a huge impact of the effectiveness of the UNSC in responding to threats to international security.

UNSC

The UNSC is considered as the most powerful and influential body of the United Nations. It is mainly responsible for maintaining international peace and security according to the UN charter. It has the ability to make decisions that all UN members are bound to obey. This makes the UNSC an important body of the United Nations and gives it a powerful position in the world.

The UNSC is made up of 15 states; five permanent and ten non-permanent states. The permanent members remain unchanged as appointed in 1945 as chief custodians of World Order. The non-permanent members are elected by the General Assembly of the United Nation for a two years term. Before 1965 there were only six non-permanent members of the UNSC but after restructuring the numbers increased from six to ten.

The UNSC has ideally a noteworthy scope of power and duties. To examine issues such as Armed Conflicts or Disputes which are a threat to international peace and security, the council meets throughout the year. It is authorized to take Military actions, order mandatory sanctions and call for cease fire, on behalf of the United Nations. Other roles and responsibilities of the UNSC include the appointment of Secretary General of the UN, the addition or removal of the members of the UN and electing the judges of the International Court of Justice.

Permanent Members and the “Power of Veto”

The UNSC “Power of Veto” means a negative vote by a permanent member on “substantive” draft resolution. Only the permanent members have the right to veto. The main purpose of establishing this system of Veto was to prevent and prohibit UN from taking actions against the founding members in the future.

The P5 have been accused many times for misusing the Veto power. The single negative vote of P5 carries the power to reject a resolution. The non-permanent members have a less important role in the UNSC as they do not have the power to veto. To pass a resolution nine votes are needed but if one of the P5 state votes against the resolution the other votes do not matter and the resolution is not passed.

The P5 states have used the veto power hundreds of times in order to serve their personal interests. From 1946-2016 the veto power has been used more than three hundred times. Russia tops the list by using veto 133 times. Most of the negative votes used by Russia were to serve the interests of its allies. For example, recently in the case of Syrian civil war Russian being a Syrian ally used the veto power 12 times to reject the resolutions related to sanctions and investigation of chemical weapons and referring Syria to International Criminal Court. The US comes second on the list by using veto 83 times from 1946-2016. Most of the negative votes by the US were on the resolutions related to Israel/Palestine conflict. China with 40 negative votes comes third on the list. Most of the negatives votes were against the resolution related to Taiwan issue, support of Russia, and on Burma Myanmar issue. The UK and France used 32 and 18 negative votes on the resolutions mostly related to Suez Canal and Rhodesian Crisis.

The Veto power system is unjust and un-democratic. It only serves the interests of the P5. The developing countries who are non-permanent members and non-veto holders have been longing for restructuring of UNSC and some of the new rising powers want permanent membership because they believe that they deserve to become a permanent member of UNSC.

Quest for Permanent membership of UNSC

The number of states has increased since the formation of the United Nations. The number of states increased from 51 to 118 until 1965. In this year the non-permanent seats of the UNSC were increased from six to ten; the permanent seats remained unchanged. Now as the number of states has increased to 192 the proponents of the restructuring of UNSC are demanding reforms in the UNSC and demands the enlargement of the permanent seats of the council.

The non-permanent seats are distributed on the basis of geography and the contributions made by the states or international peace and security. The representation of the permanent members of the UNSC is not proportional. The current structure of the UNSC is opposed by many states and they are asking for reforms.

Former Secretary General Annan proposed two models for the reforms in UNSC. The model A suggests to expand the number of UNSC seats to 24, including 3 new non-permanent seats and 6 new non-permanent seats with veto power. The new permanent members should be from Europe (1 seat), Americas (1 seats), Africa (2 seats), and Asia Pacific (2 seats). The model B also suggests the expansion of seats from 15 to 24 but does not include new permanent seats. It suggests the 4 year terms for 8 members. Africa, Asia pacific, Europe and Americas will each get 2 non-permanent seats with a 4 year term. Another additional non-permanent seat will also be created.

Another group asking for reforms is G4 (Group of four) which includes Japan, Germany, India and Brazil. The G4 states are aspiring for permanent seats in the UNSC. These 4 states are economically and politically very strong. If more seats are created in the UNSC these countries are most likely to become permanent members.

Japan contributes the second largest sum to the UN’s regular budget. Germany is the third largest contributor. India is the World’s largest democracy and 2nd largest population. It is also the world’s largest economy and third largest contributor to the UN peacekeeping missions. Brazil is the largest country in the Latin America with the largest population and economy. Russia UK and France support the G4 aspirations.

There is another group called “Uniting the Consensus”. This group includes Pakistan, Italy, Colombia and Canada. This group opposes the expansion of the permanent members of the organization. There are also other models suggested by other states and groups such as Regional model (Italian proposal), Panama proposal etc. the most discussed are the G4 states who are putting a lot of effort to get permanent membership.

How effective is the current UNSC:

The UNSC was formed in order to ensure international peace and security. It has been successful in achieving some of its goals but failed to achieve others. One of the Success of the United Nations Security Council is that after its formation the world has not seen another world War like the first and second World Wars. The credit for this success goes to all the member states that have contributed politically and economically to improve the organization. The peace keeping missions of the UNSC in Angola, Liberia, Nicaragua, El Salvador, Haiti and several other states were successful. The efforts by Secretary General U Thant during the Cuban missile Crisis are also appreciated. He was responsible for the negotiations between US and USSR during Cuban missile crisis in 1962. His efforts helped to save the world from nuclear holocaust.

The success of the Security Council is on one side but there are some failures of the council which are criticized. The council was not able to avert interstate conflicts. It failed to stop the Rwandan genocide of 1994, Cambodian genocide of 1975-79, Somalian civil war of 1993, the Srebrenica massacre of 1995 and Sri Lankan Civil war. The council was powerless during the Cold war period and several substantive resolutions were rejected at that time. It has been almost three decades since the cold war ended but the power politics between the states specially the P5 states is still going on. The misuse of the Veto power by P5 to serve their own interests is a huge failure of the Council. Due to this Veto power the Security Council was and is unable to respond to several threats to the international security.

Implications

The debate on increasing the permanent members of the UNSC has been going on for quite some time and states like India, Japan, Germany, Brazil, South Africa, Indonesia have had tried to become permanent members in the past. Although the current system of the UNSC is quiet objectionable on democratic grounds because states like Japan, Germany etc. who have grown out  to be strong regional and global powers have been long bereaved of the luxury of sitting at the elders table (the Permanent members) in the UNSC. The UNSC’s current structure lacks proportionality as the P5 chose themselves. The restructuring of UNSC and increasing the number of permanent members can undoubtedly help bring about a balance of power in the region but unfortunately it can have some serious negative impacts in the effectiveness of UNSC in responding to threats to the international security. The widening of permanent membership of UNSC would definitely weaken its potential to respond to the threats to international security. First of all it is already very hard to get a unanimous decision from 5 members with different interests hence further increasing the number of permanent members with the power to veto will result in new members too abusing the power just like the current 5 permanent members for their benefit. In a system like this, with such diversified conflicts of interests any practical decision making will become almost impossible. Another issue is that the regional powers like Pakistan and Canada cannot afford to see their rivals handed a bigger gun. Especially inclusion of the G4 countries like India will face heavy resistance because of the fear of them abusing the power for their personal gains instead of working towards international peace and security. Strong resistance against this can lead to further instability in the already unbalanced international system.

Bibliography

Agonias, Patrick. “The United Nations Security Council: Success or Failure in the Pursuit of World Peace.” Academia.edu – Share Research. ICh. February 28, 2015. https://www.academia.edu/31101243/The_United_Nations_Security_Council_Success_or_Failure_in_the_Pursuit_of_World_Peace.

Ahmad, Abdullahi A., and A. S. Haroon. “(PDF) United Nations Security Council Permanent Seats and Oic Requests.” Research Gate. Last modified January 2015. https://www.researchgate.net/publication/316545136_United_nations_security_council_permanent_seats_and_oic_requests.
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Bhardwaj, Harsh. “United Nations Security Council Veto Power.” Academia.edu – Share Research. Accessed April 23, 2019. https://www.academia.edu/8829915/United_Nations_Security_Council_veto_power.

Dorosh, Lesia, and OlhaIvasechko. “Issue The UN Security Council Permanent Members’ Veto Right Reform in the Context of Conflict in Ukraine“.” Central European Journal of International and Security Studies. ICh. n.d. http://www.cejiss.org/issue-detail/the-problem-of-reform-of-the-un-security-council-permanent-members-veto-right-in-the-context-of-armed-conflict-in-the-east-of-ukraine-0.

Guzzardi, Jose E., and Mark J. Mullenbach. “The Politics of Seeking a Permanent Seat on the United Nations Security Council: An Analysis of the Case of Japan.” University of Central Arkansas — UCA. Accessed April 23, 2019. https://uca.edu/politicalscience/files/2011/05/3_Guzzardi_and_Mullenbach.pdf.

McDonald, Kara C., and Stewart M. Patrick. “UN Security Council Enlargement and U.S. Interests.” Council on Foreign Relations. Last modified December 2010. https://www.cfr.org/report/un-security-council-enlargement-and-us-interests.

NnekaIyase, and Sheriff Folami Folarin. “A Critique of Veto Power System in the United Nations Security Council | Iyase | ActaUniversitatisDanubius. RelationesInternationales.” Danubius Journals. Last modified 2018. http://journals.univ-danubius.ro/index.php/internationalis/article/view/4116.

“The Problem With the UN Veto Power | NowThis World.” YouTube. Last modified September 30, 2018. https://www.youtube.com/watch?v=HPAONq36HKg.

“Security Council Reform: Reforms concerning its membership- an overview.” CenterforUNReform. Accessed April 23, 2019. http://www.centerforunreform.org/?q=securitycouncil.

Smith, Michelle D. “Expanding Permanent Membership in the UN Security Council: Opening a Pandora’s Box or Needed Change?” Penn State Law ELibrary. ICh. n.d. https://elibrary.law.psu.edu/psilr/vol12/iss1/6/.

“Uniting for Consensus Group Reaffirms Opposition to UNSC Expansion.” The Nation. ICh. September 30, 2015. https://nation.com.pk/30-Sep-2015/uniting-for-consensus-group-reaffirms-opposition-to-unsc-expansion.

Vaughan Lowe, Adam Roberts, Jennifer Welsh, and Dominik Zaum. “The United Nations Security Council and War.” Oxford University Press – Homepage. Last modified June 6, 2010. https://global.oup.com/academic/product/the-united-nations-security-council-and-war-9780199583300?cc=us&lang=en&.

Verbeke, Joban. “WhatIs It Like To Be a Non-Permanent Member of The UN Security Council?” Security Policy Brief. Last modified May 2018. http://www.egmontinstitute.be/content/uploads/2018/05/SPB96.pdf?type=pdf.

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International Law

Is Antarctica the new Eldorado? The sixth continent between claims and international law

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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.

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International Law

The Hathras Case, Caste Discrimination in India and International Law

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ILO/A. Khemka

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.

Conclusion

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.

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International Law

Intellectual Property on Covid-19 needs to be shared

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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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