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Surviving in a Deregulated Strategic World

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Russian-American strategic relations are entering uncharted waters with the demise of the arms control regime; rapid technological revolution; the rise of nuclear multipolarity; the asymmetry of the two countries’ positions amid their growing confrontation and an increasing likelihood of military conflict among major powers; and the complete lack of trust and a glaring deficit of decency in relations between Moscow and Washington. Preventing a nuclear war between the two powers will be as hard a task as it ever was, and the environment for that immensely more complex and fluid than ever.

Deterrence as the only pillar of stability

Russia’s nuclear doctrine, like the U.S. one, is based on the strategy of nuclear deterrence. Nuclear deterrence, in turn, is rooted in the concept of mutually assured destruction. To make deterrence credible, one has to have a realistic capability of absorbing the enemy’s first massive nuclear attack, and still of destroying him as a functioning entity in the second strike. This is assured by launching one’s missiles once a certified warning is received that the enemy has launched a massive attack. Thus, the party that fired first would assuredly die second. Knowing that, neither party would initiate an attack, and peace would be preserved. As the U.S. and Soviet presidents agreed in a 1990 joint statement, “Nuclear war cannot be won, and should not be fought”.

A credible strategy of deterrence needs to deal with a range of challenges.

Ballistic missile defenses, offering a promise of intercepting a certain proportion of incoming missiles, by definition, undermine deterrence. For three decades, ballistic missile defenses (BMD) were constrained by the ABM Treaty, which Moscow considered to be a cornerstone of strategic stability. After the U.S. withdrawal from the treaty in 2002, Russia embarked on a program designed to nullify any advantages the United States would get through implementing its missile defense programs. Thus, the BMD challenge to deterrence was – and still is being – met by improving the capacity of one’s missile fleet to penetrate enemy defenses and deliver their payloads to targets.

At this moment, the Russian leadership feels assured that its strategic arsenal will be capable of overwhelming any missile defenses the United States would be able to deploy for several more decades.

The enemy’s decapitating strikes from close range, whether from advantageous geographical positions or outer space, carry the risk of eliminating one’s national command and control centers before they can issue orders to activate a nuclear response. To meet this challenge, command and control centers are hardened to withstand any conceivable attack. Other potential counter-measures, both laden with heightened risk, include placing the adversary in a similarly vulnerable geographical position by moving one’s attack assets within close range of his key centers and bases, or by adopting a first strike deterrence posture which sends the message to the adversary that, in a crisis, one would have to launch a nuclear attack first, in order not to be annihilated by the enemy. As President Vladimir Putin put it in an interview with a U.S. TV station, “We don’t need as world without Russia”.

Other technological challenges include the use of artificial intelligence and particularly of cyberattacks to paralyze nuclear command and control systems. The importance of cyber defenses has risen sharply in the last decades. Efforts are being made to make sure that nuclear communications remain immune from cyber penetration.

Political challenges look more serious. A massive nuclear attack which was the basis of strategic thinking in the second half of the 20th century is growing less and less likely. This undermines the stabilizing function of nuclear deterrence because the threat it once sought to prevent is moving. Indeed, Russia itself, in the hour of its military weakness and domestic political disarray in the 1990s announced that it would use nuclear weapons in response to a conventional attack if such an attack would put the existence of the Russian state in jeopardy.

Prior to that, Russia rejected the idea of limited nuclear war and did not engage in thinking too much about the ladder of nuclear escalation. Under conditions of the mid-to-late 20th century, such a war would have been likely fought in Europe, including the European portion of the Soviet Union, and would spare the United States. Moscow was never going to give Washington such an advantage and said that, once the nuclear Pandora’s box was opened, limiting war would be impossible. This was certainly part of the deterrence strategy.

Now, with the specter of a nuclear holocaust receding very far, and the confrontation between the United States and Russia rising to the point when their military platforms or units can actually collide in various parts of the world; and when the United States and Russia are involved in armed conflicts on different sides and are operating in close proximity to each other, like in Syria; when frozen conflicts can unfreeze and escalate (think Donbas), preventing war between Russia and America has become perhaps the only real issue on the otherwise de fact barren U.S.-Russian agenda. It is thus vitally important to understand what Moscow and Washington are up to.

In the nuclear area, both Russians and Americans are concerned that their adversary will use nuclear weapons first at the tactical level, to seal one’s conventional success and make the other side accept defeat. Underlying this is a belief (which appears to be a fateful illusion, more present among American scholars and experts) that war and achieving victory in it have again become possible, with the stakes much lower than during the Cold War, and the prospect of total annihilation itself is enough to deter the weaker party, Russia, from using its nuclear weapons on a massive scale. This is the principal danger these days.

Misperceptions – or lack of clear understanding – between the two exist not so much regarding their nuclear doctrines but with respect to their broader foreign policy strategies. Absolute lack of trust and high levels of mutual suspicion complicate strategic assessment.

Strategic stability in a multipolar nuclear environment

Strategic stability as defined in the decades of the Cold War was narrowly focused on relations between the United States and the Soviet Union. The countries with the largest nuclear arsenals and military establishments were also the two principal antagonists in the competition not so much for state primacy but for world ideological and socio-political hegemony. With the end of the Cold War, this is all over. Russia and the United States still possess the world’s largest by far nuclear weapons arsenals, but their relationship is no longer the main axis of world politics. The United States continues to be a superpower, but Russia is now a power of a different caliber with no ambition to prevail in the world.

America’s main challenger now is China, which has surpassed it in terms of GDP in PPP terms and is expected to surpass it in nominal USD terms soon. China is also challenging America’s technological primacy and offers a model of governance that has been able to deal with the COVID-19 pandemic much more effectively than the United States. Yet, China’s nuclear arsenal is small compared to American and has a very different structure. Unlike the Soviet Union in the 1970s, China has no desire to engage in arms control at this stage, believing (correctly) this to be to America’s unilateral advantage. Such a situation creates a mismatch: U.S.’s strategic relations are better developed with Russia, which is no longer America’s principal strategic rival, and are very thin with China, which is.

Besides the geopolitical downgrading of Russia which is not reflected in a comparable decrease in its nuclear capabilities, and the steep economic/technological rise of China, not accompanied on the same scale by the growth of its nuclear forces, there are other powers who have joined the nuclear weapons states club as independent players. The United Kingdom and France, which developed their weapons in the 1950s and 1960s, have always been U.S. allies within NATO, and their weapons were always considered by Moscow to be part of the Western bloc’s combined nuclear arsenal. Cold War-era nuclear bipolarity that coincided with a similar ideological and geopolitical division (China remained largely introverted during that period) transformed into multipolarity. Strategic stability ceased being an issue for Moscow and Washington exclusively to tackle.

When India and Pakistan both acquired nuclear weapons at the turn of the 21st century, this materially changed the previous situation. Delhi and Islamabad are in no need to coordinate their policies and strategies with others. Ever since independence and partition, the two countries have maintained tense relations, leading to full-scale wars and border conflicts. Armed with nuclear weapons and delivery means and sharing a long border, they now got the ability to start the world’s first nuclear war. What is also important to note here is the strategic asymmetry: while Pakistan trains its weapons on India, India sees China as its main strategic rival, and Pakistan, China’s friend, as an adversary. Maintaining strategic stability between India and Pakistan through arms control on the U.S.-Soviet model was impossible due to geographical proximity and territorial issues, the general power imbalance between the two countries, and the asymmetrical strategic position of India and Pakistan.

North Korea, which developed its nuclear weapons and long-range missiles in the 21st century, presented another problem. Its arrival as a nuclear-armed state sent the message that any country whose leadership was determined to go nuclear and was prepared to withstand serious international pressure was able to achieve its goal, provided it stayed the course. The North Korean regime learned one thing about nuclear deterrence: all you need to do to deter the world’s most powerful country from attacking you and toppling your regime is to make it unsure about wiping out completely your nuclear arsenal or intercepting every nuclear-tipped missile that you launch against it. Pyongyang’s example essentially demonstrates that any country anywhere can effectively deter any conceivable opponent with relatively crude weapons and missiles.

During the Cold War, strategic stability used to be essentially about high-yield nuclear weapons and long-range missiles. In the 21st century, strategic non-nuclear systems have achieved a degree of precision that allows them to do the job that in the earlier era could only be assigned to nuclear systems.

With the U.S.-Soviet confrontation no longer the only major military concern, the so-called tactical weapons – both nuclear and non-nuclear – have acquired salience. These are certainly the ones that are pointed in opposite directions on the Indian Sub-Continent; they also form the bulk of the Chinese nuclear arsenal and missile fleet. Assuring stability within that class of weapons is exceedingly more difficult than with strategic weapons and intercontinental ballistic missiles. The United States and the Soviet Union never managed to control their tactical weapons – which, it was true, was less important then.

Guardrails and communications instead of treaties

Formal arms control treaties are becoming a thing of the past. Developing a new U.S.-Russian treaty to succeed New START will be extremely difficult, given the complexity of the issues involved, and the poisonous climate prevailing in the United States attitudes toward Russia. Negotiating agreements in a multipolar nuclear environment appears next to impossible. Even a trilateral U.S.-Russian-Chinese understanding – realistic in principle, given that they are currently the world’s top three military and geopolitical players by far – appears very long in coming.

Given this situation, strengthening strategic stability requires strengthening deterrence in the sense of eliminating all hopes of a victory in a nuclear war.

No new technological developments should be allowed to create an illusion of achieving victory in a war between nuclear powers. There should also be no illusion of a nuclear power defeating a nuclear opponent using only conventional means of warfare.

A military collision between the United States and Russia in the 21st century can be the result of incidents between military units or platforms – such as aircraft, ships – operating in close proximity to one another; local or regional conflicts escalating and drawing in Moscow and Washington on opposite sides; misperceptions about the actions of the other side, such as surprise exercises, and the like. In all these and similar cases, preventing military conflict between Russia and America requires the flawless operation of communications channels between the military and security authorities of the two countries. Such communication, on the model of the deconfliction mechanism that has been in place in Syria since 2015, would help clarify the situation, prevent escalation and avoid misperception or misunderstanding.

However, a complete lack of trust between the U.S. and Russian governments makes mutual suspicion irreducible. In a serious crisis, communication per se will not fully satisfy either party. Messages passed along communications channels can be perceived as disinformation. Much more value will be placed on one’s own intelligence assets, from the national technical means of reconnaissance and intelligence gathering to human sources. Interpretation of that information will be of crucial, even vital importance. Technical or human error and political and other considerations leading to misrepresentation can lead to disaster.

There can be various confidence-building measures. Under the START I Treaty, Moscow and Washington agreed to establish Nuclear Risk Reduction Centers. Such centers were ready to become operational in the early 2000s. However, the project fell through due to technical problems. A variation of that idea could be useful under the present circumstances of new hostility between the two countries. Yet, before this happens, a modicum of decency needs to be restored in the U.S.-Russian relations. Decency will not bring trust, but it can instill an element of mutual respect and self-respect to the relationship which is painfully lacking now. Without this, the only basis for strategic stability between Russia and the United States will remain fear of nuclear war.

Mutual fear may be as good a deterrent as any. It worked, after all, during the Cold War. The problem is that, in a relationship as highly asymmetrical as the present U.S.-Russian one, the two countries can stumble into a nuclear first use, and then a nuclear exchange, through the thick fog of mutual misperceptions borne out of U.S. arrogance, Russian resentment, reciprocal hostility, and utter disrespect.

Avoiding collision in uncharted waters

Even if New START is extended, the United States and Russia will have bought only a short reprieve. Five years – if this is the timeframe of the extension – will hardly be enough for negotiating a new treaty. So, extension or no extension, the 50-year-long era of arms control between Moscow and Washington is drawing to a close. From now on, deterrence will not only be the principal basis of strategic stability but its only basis.

True to its core philosophical assumptions, political goals, and doctrinal objectives, the United States will continue to strive for strategic superiority over Russia and China. For its part, Russia will seek to protect its nuclear deterrence capability vis-à-vis America. The nuclear arms race is already on. This is not a game of numbers of weapons but rather of their capabilities. President Putin, in his 2018 annual address to the Federal Assembly, laid out what measures had been taken by Russia in response to the 2002 U.S. withdrawal from the ABM Treaty. Further modernization efforts will continue on both sides.

Strategic decisions by either party that change force postures can lead to changes to the other party’s doctrines. The U.S. withdrawal in 2019 from the INF Treaty has opened the way to the development and deployment of a new generation of INF systems in both Asia and Europe. If such U.S. systems are deployed in Japan and South Korea, this would put China’s key centers of decision-making and strategic assets at high risk, as well as cover much of the Russian Far East and Siberia. Russia would certainly respond with its own deployments, modifying its force posture accordingly. If, by contrast, U.S. INF missiles are deployed to Europe (e.g., Poland) from where they can quickly reach Moscow and all targets in European Russia, this would place Russia in ultimate danger. There will certainly be changes to Russia’s own force posture. However, Russia might logically have to go farther and adopt a first-strike deterrence strategy in order to pre-empt a decapitating U.S. attack against itself. Having escaped nuclear war when U.S.-Soviet antagonism was absolute, the two countries might thus put the world’s existence at risk out of sheer contempt for each other.

This dangerous outcome needs to be prevented. Deconflicting and communications are vitally important, confidence building, such as the resurrection of nuclear risk reduction centers might help, but without a meaningful improvement in Russian-U.S. political relations to the level of serious dialogue on security issues between the two governments, the situation will continue to deteriorate. Right now, U.S.-Russia relations are clouded in a toxic fog, which makes avoiding kinetic collision between them much more difficult. It looks that the Biden Administration, while supporting New START extension and arms control in general, is going to take a hard line toward the Kremlin, aiming to squeeze Russia even more than its predecessor. Moscow is bracing for a new round of confrontation. Tough times are lying ahead.

From our partner RIAC

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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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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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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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