4/24/2023 Navigating the Pandemic Landscape: The Significance of a Modern Pandemic Treaty in International Law – Part IIRead NowThis article is authored by Tarazi Mohammed Sheikh, a Penultimate-year Law Student at BRAC University.
Relevance and significance of adopting an international instrument on pandemic (b) Protection of human rights A pandemic has manifold links with human rights, as the experts of the United Nations assert, that the negotiations for an international instrument on pandemic prevention, preparedness, and response must be conducted in line with human rights. The COVID-19 pandemic, in the past 3 and more years, has made clear that a pandemic, directly and indirectly, affects several economic, social, and political rights of people, among which the right to life, the right to appropriate healthcare, the right to freedom of expression, assembly and movement are common worldwide. Several instruments in international law recognize the rights of every human being for their tranquil exercise of economic, social, and cultural functions. However, unprecedented circumstances like the COVID-19 pandemic evidently give rise to questions as to whether rights are being violated in the process of addressing the crises. The International Covenant on Economic, Social and Cultural Rights (1966) (“ICESCR”) provides in its preamble the objective to “...[recognize] the inherent dignity and equal and inalienable rights of members of the human family..]” as the foundation of freedom, justice and peace in the world. In Article 1(1), the ICESCR provides the right to self-determine the economic, social and cultural status. The ICESCR prohibits any interpretation of its provisions to be utilised for barring the freedom and recognition of anyone’s rights at any stage in Article 5. Article 6 provides the right to freely determine one’s occupation and safeguards relating to the occupation. Article 7 ensures rights and equality pertaining to wages and remuneration of the workers. The right to social security and insurance has been guaranteed under Article 9 of the ICESCR. Furthermore, Article 12 of the ICESCR conforms to the enjoyment of the highest attainable standard of physical and mental health of a person which includes the prevention, treatment and control of epidemic, endemic and similar cases, as such of the COVID-19 pandemic. The right to basic and uninterrupted education and enjoyment of a social life filled with cultural engagements are secured in Articles 13 and 15 respectively. Further, Article 16 obligates the States parties to adopt necessary steps at any stage to protect the rights under the ICESCR. In that vein, the COVID-19 pandemic has resulted in the violation of the aforementioned rights at different stages. Many people around the world have been deprived of their right to freely determine their occupation and their rightful demand of wages according to their work as the employment rate dropped significantly due to the severe collapse of the economic system in most parts of the world. Ultimately, the economic status also threatened the social security of many people. The right to the highest attainable standard of physical and mental health has been under threat, not to mention, in every part of the world as people sustained damages relating to not only medical health but also economic, social and familial issues. The basic education of many children and the cultural programs have been interrupted as countries imposed months-long lockdowns to prevent the spreading of the virus. Likewise, the COVID-19 pandemic threatened the civil and political rights of the general people at various levels throughout the years. The International Covenant on Civil and Political Rights, 1966 (“ICCPR”) in its preamble specifies its objective to accelerate the protection of human rights in line with the Universal Declaration of Human Rights (1948) to recognize “...the ideal of free human beings enjoying civil and political freedom and freedom from fear…]” Similar to the ICESCR, it provides the right to freely determine one’s political status in Article 1(1). Then Article 2 provides the equal treatment of all people regardless of race, religion and language or social origin. An important provision of the ICCPR, Article 4, provides provisions relating to public emergencies. It asserts that the circumstances of public emergency shall be addressed and necessary steps shall be taken, however, without derogating the rights and without emanating discrimination “solely on the ground of race, colour, sex, language, religion or social origin” Article 6 provides the legal protection of the right to life followed by the right to liberty and security in Article 9. Further, Article 12 provides the right to lawful movement within and out the territory, which is further subject to reasonable restrictions. Such reasonable restrictions may be extraordinary situations like public emergencies or a pandemic. Article 21 of the ICCPR provides the right to peaceful assembly. However, this right is also subject to reasonable restrictions, including public health emergencies and public order as per the texts. Article 24 of the ICCPR provides rights relating to non-discrimination based on origin, which is further reiterated in Article 27. Albeit, the world has witnessed an upsurge of racial discrimination against a specific group of people, particularly Asians, during the COVID-19 pandemic in the assumption that the virus has emanated from China, hence the liability belongs to the Chinese and Asian people. As a result, several violent encounters have been reported in many countries with specific racial groups. Therefore, the instrument on pandemic also concerns provisions relating to the prevention of racial discrimination. Limitations and future implications While yet in the process of drafting, the finalised provisions of the convention or agreement remain unsure to date. While a hugely responsive consent of 194 countries initiated the drafting process, streaks are high that not all countries may agree with the final drafting and ratify it. The Chief of WHO in a recent statement indicated that the end of the COVID-19 pandemic is not far in sight. Hence, the pandemic can only be used as a model to draft the instrument as most of the factors behind a scientifically triggered disaster to remain unknown and subject to a time-consuming process of experiments. It is estimated that because the push for the adoption of a Pandemic Treaty arose due to the enormous challenge posed by the pandemic, a good number of countries expressed conformity with the initiative. However, the long-run success of any new adoption greatly depends on the compatibility of the instrument. In international legal practice and literature, there is no standard formula to determine the effectiveness of a multilateral treaty. As a result, the term ‘treaty effectiveness’ does not exist in the international legal regime. However, there may be some factors and indicators considered conducive to the success and specification of issues that essentially detract from positive outcomes can be deduced based on the past reviews and experiences of a large number of treaties and instruments in force. Despite the attempts to extract a fully-fledged framework to prevent, prepare and be responsive to pandemics in the future, the prospective international instrument demonstrates several limitations. Such adoption would not only pave the way for the expression of true political motive to work in line with global health and protection measures as well as provide an all-inclusive and sustainable framework to foster global cooperation against threats posed by pandemics, endemics and beyond. Another limitation of the instrument may be concerning unequal enforceability. Furthermore, the signing parties have sought a progress report on four key inputs, which include a requirement for the member states and stakeholders to provide a written copy of the drafts of the treaty, the 2022 WHO Regional Committees to conduct regional consultations on the provisions and their effectiveness, informal and focused discussions on specific topics with experts, specialist and concerned officials; and finally, to conduct public hearings for relevant stakeholders to express their comments and observations of the proposed drafts. The scope for States to conform to the treaty after its adoption is estimated to be governed by the decisions of the Member States and the intergovernmental negotiating body. It is further expected that the new accord shall remain open for all States to ratify and contribute in line with the example of the FCTC. What significantly sets the pandemic aside from other man-made disasters, is that it is unpredictable and sensitive to address. While there are several data available on the estimation of the harm caused by the pandemic in 3 years, the actual damage is uncountable by data. Further, the pandemic also imposes risks of genetic mutilation and permanent medical damage to affected living beings which may be descended to the future generation without alert. Additionally, while the pandemic caused severe damage to the world economy, however, specific countries of low income and lower GDP faced the most threats. Hence, it may be a challenge for the economically shallow States to enforce the instruments at their best. As a result, it is pertinent to adopt the most sustainable instrument to avoid maximum damage in the future caused by a pandemic, endemic or similar disaster.
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4/24/2023 Navigating the Pandemic Landscape: The Significance of a Modern Pandemic Treaty in International Law – Part IRead NowThis article is authored by Tarazi Mohammed Sheikh, a Penultimate-year Law Student at BRAC University.
Background The COVID-19 pandemic has been one of the significant challenges to the global community for the past 3 years and further. It is considered the biggest and most destructive period since the 1940s. Moreover, it is also considered a one-of-a-kind threat which makes it different and more challenging to deal with. The reason behind its uniqueness lies in its origin; a scientific cause, a virus. The novel coronavirus medically termed SARS-CoV2, first emerged publicly in late 2019 in Wuhan city of the People’s Republic of China. Being a fast-growing virus and a highly contagious one, it took less than 3 months to become a public health concern that seemingly infects patients with a severe form of acute respiratory syndrome. As such, public panic occurred correspondingly as the scientists and medical experts failed to provide any immediate medical solutions, making the virus seemingly a terminal disease for many. The World Health Organisation (“the WHO”), a specialised agency of the United Nations for international public health, then declared the condition a Public Health Emergency of International Concern on the 30th of January 2020. However, with the increasing rate of death and the urgency of immediate cooperation from the States, the WHO announced the outbreak as a “Pandemic” on the 11th of March, 2020. Ever since, different protocols and measures have been taken by different States to minimise the destruction of the pandemic at different levels. As of January 2023, more than 663 million cases have been confirmed cumulatively in the global aspect by the WHO, with a cumulative death count of more than 6 million patients. The WHO, besides being assiduous in keeping a record of the numbers, does express concern for the uncounted and unrecorded number of confirmed cases and deaths worldwide. Hence, at the global level, COVID-19 has raised a common threat and concern for the States against such an envisaged global outbreak in the future. In the vein of the harm caused and estimated to be caused by the end of the pandemic, a panel negotiation for an international instrument on pandemic preparedness was held at the 75th session of the World Health Assembly (“the Assembly”) of the WHO in May of 2022 at Geneva, Switzerland. The provisional agenda of the Assembly included deliberation between the world leaders and experts in public health on an urge that States negotiate on adopting a new international instrument on pandemic preparedness and recovery. With the patronage of the Director-General of the WHO, Dr Tedros Adhanom Ghebreyesus, the Assembly consented to initiate a historic global process of drafting and negotiating an international instrument like conservation or an agreement to protect the world from such crises similar to the COVID-19 pandemic in the future. The instrument, according to the Assembly, would be drafted following the provisions of the Constitution of the WHO and would aim to remain vital in its mission of strengthening pandemic prevention, preparedness and response worldwide as well as strengthening the global health structure to protect and promote the right to health of people. As of January 2023, the instrument is in the process of drafting by an intergovernmental negotiating body and is due to be delivered by a progress report at the 76th World Health Assembly later in 2023 with a tentative date of adoption by 2024. Relevance and significance of adopting an international instrument on pandemic An unforeseen and rapid pandemic like COVID-19 is, undoubtedly, a global challenge, and not any single State or group of States can be held responsible. Similarly, not one single State or group of States can address the threat single-handedly in the future. Thus, the principal aim of an international instrument on pandemic prevention, preparedness, and response is to build solidarity in the essence of the doctrines of fairness, inclusivity, and lucidity. Moreover, an international legal instrument like a Convention or Agreement is legally binding on the States Parties which ratify it under international law. Hence, the instrument to be adopted in line with the provisions of the Constitution of WHO shall have a binding characteristic on the States which would ratify it upon adoption. It is universally agreed that a pandemic like COVID-19 can be prevented if the entire cycle of precaution, detection, and response can be reformed and the loopholes addressed. Not only this, COVID-19 exposed some of the crucial images of many States of their unpreparedness and incompetence to address such a devastating crisis. It further indicated negligence and a corrupt approach to many States’ healthcare systems at the domestic level. Hence, the prospective instrument for pandemic preparedness is not only a legal and medical discourse, but also a political one. Further, what intrigues the adoption of a Pandemic Treaty at this stage is that there have been several independent review committees and panels in different sectors of the United Nations and other institutions functioning for global causes which at different times indicated the necessity for a more effective international legal regime to prevent, prepare for and respond to pandemics and endemics, especially, considering the functions and scopes of the single existing instrument, the International Health Regulations ( “IHR”). Here, it is pertinent to mention that the IHR are a key international instrument focussing on international health-related measures and safety. The Regulations were primarily established for the purpose of preventing, protecting against and controlling to provide public health response to an expanded way of spreading infectious disease in such a way that is in accordance with and restricted to risks of the public health and to avoid irrelevant interferences and interventions with the international traffic and trade. Another significant aspect of the IHR is Article 57, which provides the authority to the State Parties to conclude any international accord or special treaty for the purpose of implementing the Regulations in a cost-effective manner. There are, however, some other Conventions, Agreements and Rules available under the mandates of the WHO such as the WHO Framework Convention on Tobacco Control (“FCTC”) covers the major (albeit the only existing instrument of its category) global health concerns under the WHO. Not only these, the Treaty also seeks to address social and economic responses in times of pandemics. (a) Three stages of addressing a pandemic; Prevention, Preparedness & Response The instrument comes with manifold purposes. For instance, it aims to prepare the world for a future pandemic, both on a global and regional level as well as increase global capacities and resilience. Further, it aims to bring the States together politically and build a higher, sustained and long-lasting political commitment among them. The instrument also aims to define the terms relating to a pandemic, i.e., the legal definition of pandemic, endemic, resilience, disaster management, lockdown, shutdown, terms of safety protocols relating to infectious disease, etc. Hence, it will provide an enhanced and comprehensive understanding of the circumstance and concerns relating thereto. Another core aim of the instrument would be to enhance support for the people in terms of both the public and private sectors. Finally, the instrument shall allocate a greater scope for fostering the integration of policy areas pertaining to health matters at both domestic and international levels. Besides framing the do’s and don’ts of a State during the pandemic, the instrument also aims to support and focus on preventive measures by increasing resilience before a pandemic may occur. A further means to ensure an appropriate response to any future incident is to ensure universal and equitable access to medical equipment, such as medicines, vaccines, protection measures, surgical tools, etc. The instrument, in addition, aims to create a stronger international framework to be followed by all State Parties which would pertain to the global health measures and standards set by the WHO. Finally, the instrument targets not only aid human beings, but also animals and the planet as a whole. In most States, the national healthcare system suffered extreme pressure during the pandemic despite high or low economic conditions. Such an unprecedented and wide health emergency resulted in causing a shock to the regular healthcare supplies, services and the workforce required on the front line to combat the dangers. In this regard, the Independent Oversight and Advisory Committee for the WHO Health Emergencies Programme Report provides, “ensuring delivery of an essential package of health services with sustainable funding is a key priority.” Hence, the frameworks of each state for disaster risk management and resilience would play a significant role. And in that regard, the key function is in the hands of the administrative and legislative branches of the States to implement the existing legislations and enactments enforceable within the domestic sphere. Such a framework from each State must be mandated to ensure the availability of access to vaccines, diagnostics, medicines and other health and protection equipment essential for combatting an unprecedented and infectious disease with a rapid rate of contagiousness. Therefore, the critical challenges faced by the health regulatory systems at domestic levels would be further developed after the adoption of the international accord which would allow the components of the WHO health systems framework and health services, hospital capacity building, health workforce, issues relating to capacity and protection, governance and financing and other relevant sectors to grow and work in line with the preparedness and prevention against deadly pandemics. Finally, by implementing the aforementioned goals, the international instrument of pandemic prevention, preparedness, and response will ensure cooperation among the States and build better surveillance, alert, and response to future pandemics. Note: The relevance and significance of adopting an international instrument on pandemic in terms of the protection it offers to human rights, and the limitations of such an instrument as well as its future implications will be discussed in Part II of the blog. 4/17/2023 ICC’S Warrants Against Putin: Addressing Gaps in International Law with respect to ICC’S JurisdictionRead NowThis article is authored by Divyanshi Shukla and Vidushi Jaiswal pursuing their second year B.A. LL.B. (Hons.) at National Law Institute University, Bhopal.
Introduction “We cannot allow children to be treated as if they are the spoils of war.” - Statement by Prosecutor Karim A.A. Khan KC On 17th March 2023, Pre-Trial Chamber II of the International Criminal Court (ICC or Court) issued warrants of arrest for two individuals in the context of the armed conflict in Ukraine: Russian President, Mr. Vladimir Vladimirovich Putin and Russian Children’s Rights Commissioner, Ms. Maria Alekseyevna Lvova-Belova. This means that the authority of the Court has been brought into question again, with this historic decision. However, there are several gaps in the jurisprudence that makes it difficult for the ICC to implement its orders against Putin, as indicated by Russian spokesperson Maria Zakharova, wherein she said, “the decisions of the ICC have no meaning for our country, including from a legal point of view.” This article aims to shed light on the apparent gaps in the implementation of the Court’s authority over Non-State Parties. It analyses the situation of issuance of warrants in the case of Russia with respect to the settled jurisprudence in international law and further discusses the solutions that can be put forth by the international community, specifically India. It also discusses the interaction between the United Nations Security Council (UNSC) and ICC where the UNSC strengthens the authority of the Court in holding even the non-State Parties accountable. Settled Jurisprudence The settled jurisprudence in international law does not vest unfettered powers and rights in the ICC to hold the actors responsible for their wrongful conduct. The whole idea of the legal justice system that is embedded in the Court depends on the extent and level of cooperation offered to it by governments so that it can function successfully and carry out its role. States that are not parties to the ICC are also included in this cooperation. Cooperation under the Rome Statute and UNSC The ICC, which derives its mandate from the Rome Statute, is a permanent international court to prosecute the criminals for the most serious crimes whether committed in their territories or by their people in other regions. Since the ICC does not have its own police or institutional regime to hold the perpetrators accountable for their atrocious acts, duty to cooperate by the international community becomes paramount for strengthening the mandate of the Court. This duty to cooperate differs for State Parties and non-Party states. This is because State Parties are bound to cooperate which does not leave room for them to evade the Court’s jurisdiction. A broad clause relating to state cooperation and judicial assistance is found in Article 86 of the Statute. This clause mandates the State Parties to “co-operate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.’’ The duty to cooperate by the State Parties also finds a mention in Treaty law and Article 35 of the Vienna Convention on the Law of Treaties (VCLT) states, “an obligation arises for a third State from a provision of a Treaty if the parties to the Treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.” Further, according to Article 34 of the VCLT, a Treaty cannot impose obligations or rights on a third state without that third Party’s assent. Thus, as aforesaid, while State Parties are under an obligation to present cooperation requests and cooperate with the directions of the ICC, Non-State Parties may only be invited to cooperate. Russia has always tried to escape from the clutches of the ICC by using its Non-Party status as an excuse. Recently, the ICC issued warrants against Mr. Vladimir Putin on violation of Article 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute for the war crimes of unlawful deportation of people (children) and unlawful transfer of population (children) from the occupied areas of Ukraine to the Russian Federation. Similar charges were levelled against Ms. Maria Belova. They were also charged with individual criminal responsibility under Article 25(3)(a) of the Statute. Nevertheless, Russia has refused to surrender to its grave actions by not accepting the Court’s jurisdiction. However, when the Court’s authority is analysed conjointly with the authority of the UNSC, the jurisdiction of the ICC seems to bring even the Non-State Parties under its ambit. When the UNSC recommends a problem to the ICC, interaction between the two organisations begins. The UNSC establishes the basis of this interaction through referrals made to the Court. These referrals help the Court exercise its jurisdiction even on the Non-State Parties. Cooperation under international humanitarian law- Geneva Convention Both the 1949 Geneva Conventions and the Rome Statute have a strong relationship with regard to war crimes. Furthermore, nearly all the states of the world have ratified or acceded to the 1949 Geneva Conventions, which have indisputably become a part of customary international law. In any case, the duty to cooperate should be interpreted as requiring Non-Party States to try not obstruct the ICC’s efforts to punish or stop grave violations of the Geneva Conventions at the very least. If we look at the observations in the Nicaragua case, the Court therein noted, “there is an obligation on the United States Government, in terms of Article 1 of the Geneva Conventions, to ‘respect’ the Conventions and even ‘to ensure respect’ for them ‘in all circumstances.’” ‘Ensuring respect’ means that all states, whether or not they are involved in a conflict, must do everything within their power to ensure that everyone, especially the conflict’s participants abide by the rules. In light of the aforesaid discussion, a perusal of Article 50 of the Geneva Convention makes it clear that it mandates states to take all necessary actions to make ‘child identification’ and ‘parentage registration’ easier. In any case, states are not to alter their current situation or enlist them in formations or organisations that are beneath it. In the present scenario, Russia has hardly taken any such measures. On the contrary, it has unlawfully deported and transferred around 16000 children. However, the current system does not seem to penalise it for the same. Analysing Gaps in the Implementation The issuance of warrants by the ICC does not mean that Vladimir Putin or Maria Belova will be out of power, extradited or even indicted anytime soon. Since Russia is a Non-State Party, even if it fails to co-operate with the ICC, the ICC Assembly of States Parties does not have the authority or capacity to censure it or ask Russia to assume state responsibility. Even under the general principles of international law, there is no direct or binding obligation of Russia to follow the ICC warrants. Due to this reason, the authority of the Court came to be questioned since those who are accused of serious crimes, such as Putin, can evade trial and punishment owing to them being Non-Party to the Treaty. Personal Immunity of Incumbent Heads of State Russia can decline to enforce the ICC warrant by enforcing the immunity for Heads of State. Doctrine of Head of State immunity was developed in the case of Democratic Republic of the Congo v Belgium. This case suggests that “heads of the state have ratione personae immunity for public acts done whilst in office.” There is abundant state practice to show that this rule is well-established in the international law.[i] Moreover, Article 17 of the Rome Statute is based on the principle of complementarity, according to which, the jurisdiction of the ICC is not superior to that of the states. Hence, Russia can rely upon precedents to escape prosecution of Putin and Maria Belova. Furthermore, there have also been instances where states have not complied with the warrants issued by the ICC. In the case of Prosecutor v Omar Hassan Ahmad al-Bashir, South Africa did not comply with the warrant for the arrest of Omar al-Bashir, the incumbent President of Sudan, for various war crimes and crimes against humanity. Similarly, in the case of Prosecutor v Gaddafi, Libya did not authorise the warrant to arrest Muammar Gaddafi, the then incumbent President of Libya. Both South Africa and Libya cited the reason that they are Non-States Parties to the Rome Statute and their head of state enjoys immunity from prosecution. These prosecutions against them were indeed made effective, however, only through UNSC Resolutions 1593 and 1970 respectively. So, the question that arises is, can a UNSC resolution bar Russia as well? UNSC Resolutions: How Effective are they for Russia? UNSC derives its authority from Article 25 of the UN Charter which states that all the decisions made by the UNSC are binding on all the member states of the UN. The implementation of prosecutions against Putin through UNSC Resolution is not likely because Russia is a permanent member of the UNSC and a negative vote from any one of the five permanent members of the Council stops action on any measure put before it. Therefore, it is most likely that if the UNSC takes action against Putin, Russia will simply veto against it and stop it. Therefore, due to its permanent membership in the UNSC, it is difficult to hold Russia accountable. Conclusion and Way Forward The Court’s President, Piotr Hofmanski noted, “the ICC is doing its part of work as a court of law. The judges issued arrest warrants. The execution depends on international co-operation.” The issuance of warrant by the ICC is significant as it can act as a ‘wake-up call’ to others committing abuses or covering them up. The foregoing analysis shows the ambiguity in implementation of warrants passed by the ICC due to non-compliance of Russia. Russia’s powerful position in the UNSC makes these provisions of ICC a toothless tiger with regard to dealing with the serious violations committed by Putin, and makes this just another empty chase between the ICC and Putin. Therefore, the gaps in implementation have to be filled in order to prevent such horrendous crimes to take place in future. While a State may not have acceded to the ICC, it should still be subject to an obligation to co-operate with it in certain cases like crimes against humanity and other humanitarian crimes. Furthermore, the power to veto should be taken away from the five permanent members of the UNSC if the UNSC resolutions concern that State. Not only these, but the situation is also an interesting test for countries like India and China, which want to see themselves as major international players. Talking about India, which is looking forward to the 17th G20 Heads of State and Government Summit this year where Russia is also an invitee, India can either allow Putin to attend the summit or cancel his invitation after the current turn of events. India should consider cancelling his invitation as it is already walking a tightrope by taking the “strategically independent” stand in the Russia- Ukraine war. India has even abstained from voting in UNGA resolution to end the war and because of that, the West is already upset. Hosting G20 is a positive step towards advancing India’s national interest in global politics and India should not risk this by allowing Putin to attend the G20 Summit. Lastly, the instant issue also presents an interesting test for the global players, as cooperation from global key players plays an important role. The degree of political, industrial, and civil society awareness of the issues; the level of stakeholder engagement, and the level of regulatory competence will all play a role in this issue. Only time can tell as to how the present case would unfold. [i] Muammar al-Ghaddafi (2004) 125 ILR 456 (French Cour de Cassation); Fidel Castro [Spain, Audiencia Nacional] No 1999/2723, 4 March 1999; Tachiona v Mugabe and others 169 F Supp 2d 259 (United States District Court, 2001); ‘The Belgian Court of Cassation v. the International Court of Justice: the Sharon and others Case’ (2003) 1 Journal of International Criminal Justice 437; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3, 24 [58] (‘Arrest Warrant case’). This article is authored by Vrinda Gaur a 2nd Year Student of Law at Dr. Ram Manohar Lohiya National Law University, Lucknow.
Introduction The first time national food safety and animal and plant health measures were put forth on the negotiation table was during the deliberation of the GATT Agreement 1947. With the establishment of the World Trade Organisation on 1st January 1995, a new Agreement on Sanitary and Phytosanitary (SPS) Measures as a part of the GATT Agreement came into force, superseding the old principles of human, animal and plant health protection measures as enumerated in the GATT Agreement. The Sanitary and Phytosanitary (“SPS”) Agreement is a part of the World Trade Organization (WTO) agreements that aims to protect human, animal, and plant life, or health from risks arising from the introduction of pests, diseases, or contaminants in trade. The factors behind the demand for the evolution of an SPS Agreement were poor dispute settlement mechanism of the Standard Code and the expansion of trade tariffs and quotas to agricultural goods. While the agreement seeks to promote free trade while protecting human, animal, and plant health, there are concerns that it may disproportionately impact the interests of the Least Developed Countries (“LDCs”). Furthermore, although parties reached a consensus during the Uruguay Round that the agreement would cater for a mechanism that would open international markets for developing nations, it was also a foreseen risk that it could be used as a protectionist device by the developed countries. To add to the dilemma, only a few developing nations were a part of the negotiation table for the agreement making it more a product of the developed world. Although both the developed and developing nations acknowledge the requirement of such an agreement for equitable facilitation of international trade, a paucity of technical, financial and human resources further added to the list of issues for the convenient implementation of the Agreement. This piece aims to critically analyse the shortcomings of the SPS instrument from the perspective of developing or LDCs. Major Concerns of the Developing Nations Implementing the SPS Agreement centres around two crucial propositions: non-discrimination and scientific justification. All provisions of the agreement ranging from harmonisation (Article 3), equivalence (Article 4), risk assessment ( Article 5) etc., function based on the above two propositions. As a result of noncompliance with the principles of non-discrimination, and enforcement of a measure not backed by sufficient scientific evidence, the SPS Agreement has turned into a protectionist tool in the hands of the developed nations to promote their interests, as well as protect their local producers and products. Furthermore, a major concern of the developing nations is the harmonisation issue. Harmonisation requires a member nation to base its sanitary measures on international standards and guidelines. The agreement further recommends the standards and policies set by three major organisations: (i) Codex Alimentarius Commission, (ii) the International Office of Epizootics, and the International and Regional Organisations operating within the framework of the (iii) International Plant Protection Convention to be looked up to, while looking for a suitable sanitary measure. As easy as it may seem, a direct correlation exists between the likelihood of a country being part of the organisations mentioned above and their per capita incomes. Owing to their low level of per capita income, developing counties are unable to voice their appropriate level of protection to be considered by these organisations for formulating standards, rules and guidelines. Hence, the rules, standards and guidelines of such organisations usually follow the paradigm enumerated by the developed nations due to lack of representation of the developing nations and the LDCs. A second essential provision of the agreement pertains to equivalence (Article 4). “Equivalence” refers to the principle that countries can use different measures to achieve the same level of human, animal, or plant life or health protection without creating unnecessary trade barriers. It means that if a country has different regulations or standards for a particular product, they provide an equivalent level of protection to the rules or standards of another country. This essentially entails that the product be considered equal and not subject to additional trade barriers. The issue here is that the developing nations call for stricter implementation of this provision. The developed nations, on the other hand, want the measure to be similar to ‘their’ standards in terms of outcome and implementation. The essence of the agreement requires an analogous measure, whereas the developed nations demand a facsimile. The reason behind such a demand on the part of the developed nation is the need for more trust in the food safety system of the developing countries. However, expecting developing nations to implement an exact measure would go against the interests of such nations, considering their economic and human resources limitations. Next in line is the issue of transparency. Transparency under the SPS Agreement refers to the principle that countries must provide clear and timely information about their SPS measures to other WTO members to ensure that they are based on science, and do not create unnecessary trade barriers. The main concern here is that SPS measures vary from country to country; are often very intricate to understand, and subject to frequent changes, thus leaving exporters in a state of ambiguity about the sanitary legislation in their export markets. Members must also formulate enquiry and notification points to provide smooth access to information about their market conditions to nations who wish to trade with it. Though formulating such points has been easy for the developed countries, developing nations need to catch up due to the lack of efficient tools to gather such information promptly. Furthermore, while developed nations have played a prompt role in notifying such market changes through legislation, developing countries have often complained that their inputs and recommendations are often neglected and ignored. Developing countries experience many problems with transparency related to the lack of financial and human resources that are necessary to follow, understand and comment upon developments in the regulatory frameworks of their trading partners. Setting up a mechanism that would help collect and disseminate information to the country that appeals to the forum for such information was a collective suggestion of the developing nations. However, affirmative actions still await. Concerning the special and differential treatment issue covered under Article 10 of the Agreement, developing nations are dissatisfied with the non-acknowledgement of this provision by the developed countries. Developing countries have requested a more extended period for commenting upon new measures introduced by the developed nations in addition to an increase in compliance with such measures. All this stems from the lack of economic and human resources, as seen previously. Developing nations have requested a period of 12 months between the publication of a measure and its actual enforcement. They have further asked for the implementation in specific time frames in particular areas and issues. However, more voices should be given to their legitimate concern. Another concern of the developing nations is the dispute settlement mechanism of the SPS agreement. The dispute settlement mechanism is quite lackadaisical and provides a long way out. Resource-wise, mainly financially, it is quite draining. The settlement process takes around two to three years before a favourable decision of the panel or the appellate body will bring about any regulatory changes. One such instance is the delay in the decision of the Appellatte Body in the US-COOL case between USA and Canada. Initially the issue came up in 2008, however the decision was delivered no earlier than 2011. In such a long period of ambiguity, exporters usually look for alternative channels for trade, as awaiting the ruling of such bodies would cause severe economic losses. Moreover, the cost of proceeding with the complaint is quite hefty. Hence, developing nations often partner with a developed nation to divide the cost. However, the result of such a partnership is often harassment of the developing country by the developed county. Conclusion The limitations in own country’s administrative arrangements for SPS requirements, lack of knowledge of SPS requirements among government officials; incompatibility of SPS requirements with domestic production or marketing methods; poor access to financial resources; insufficient time permitted for compliance, and all of the aforementioned difficulties can be summed up as challenges faced by the developing world. One possible solution that could assist in dealing with most of the above issues is to provide representation to the developing and the LDCs in organisations such as the Codex Alimentarius Commission and the International Office of Epizootics that are responsible for formulating health safety guidelines, rules and standards of international trade. Such representation would ensure maintenance of the requisite standards and appropriate level of protection for the developing countries, as well as ensure harmonising them with those of the developed nations, making the compliance procedure less onerous than before. Moreover, greater cooperation among the developing countries in SPS issues is also fundamental. Co-operation could be in the forms of joint national efforts at conducting risk assessments for SPS measures; everyday R&D activities in food production; co-operative efforts in technical assistance; training in administrative and production processes; exchange of information, and new initiatives on SPS matters, both of WTO origin and private standard. Creation of a financial pool that would alleviate the economic burden of the developing nations, while instituting complaints and disputes before the dispute settlement body is also an excellent measure, to begin with. The focus should be on addressing short-term issues. The redressal of these core issues will make way for settling the unaddressed long-term concerns. 4/3/2023 The 2047 Navy Atmanirbharta Goal: Analysing India's Maritime Power and Control of the Sea for Freedom of NavigationRead NowThis article is authored by Tejaswini Kaushal, a 2nd-year B.A. LL.B. (Hons.) student at Dr. Ram Manohar Lohiya National Law University, Lucknow, holding a keen interest in cyber law, technology law, IP law and corporate laws.
Introduction India is a maritime nation with a coastline of more than 7,500 km, and an extensive Exclusive Economic Zone (EEZ) of about 2.2 million square kilometers. As a result, India has a strong interest in promoting freedom of navigation and the rule of law in the oceans. The Navy is, therefore, essential to India’s defense, providing a robust and reliable presence on the seas. At Aero India 2023, Chief of the Naval Staff, Admiral R Hari Kumar, announced that the Indian Navy will become a fully self-reliant force by 2047, committed to fostering Atmanirbharta (“self-reliance”) in the defense arena. Furthermore, with a focus on the Indian Ocean region, the Navy’s partnership with the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (RCOC) in Seychelles allows for extended surveillance further south. In light of the proposed increase in the Indian Navy’s capabilities, India’s commitment to self-reliance in defense and becoming a significant maritime power must be consistent with international law and the rule of law. With this backdrop, it becomes essential to examine India’s maritime policies and outlook on sovereignty in light of principles of International Law. Concepts of International Maritime Law Governing Indian Maritime Strategy The concepts of Mare Clausum and Mare Liberum have historically governed maritime law. Mare Clausum refers to the idea that a country could claim sovereignty over a particular sea and restrict access, while Mare Liberum advocates for free navigation in the oceans. Today, freedom of navigation is a crucial principle in international maritime law, which asserts the right of all states to navigate and use the oceans without restriction. India has emphasized the importance of freedom of navigation in the Indo-Pacific region as part of its strategic interests and commitment to a rules-based order in the oceans. India's Outlook on Sovereignty and Maritime Law India is a nation deeply rooted in the notion of sovereignty, with a strong historical basis for its adherence to maritime law. This is exemplified in its stance of nonalignment; its constant adherence and support of being bound by the dictates of the United Nations Convention on the Law of the Sea (“UNCLOS“); its consistent emphasis on the importance of the freedom of navigation in the Indo-Pacific region, and its insistence on the right to self-determination. India’s commitment to sovereignty and maritime law is further strengthened by its commitment to protecting its territorial waters and exclusive economic zones and its active participation in regional and international forums to ensure the resolution of disputes through peaceful means. The Indian government has adopted a strong stance in favour of the freedom of navigation and has consistently rejected the notion of ‘innocent passage’ (“Right of Passage over Indian Territory (Portugal v. India)“) as well as any restrictions on the right to use international waters. India’s stance on sovereignty and maritime law is thus shaped by its long-standing commitment to freedom, autonomy, and the rule of law. The Challenges Posed to India's Stance on Maritime Power and Control India’s approach to maritime power and control of the sea raises some legal questions and concerns. Firstly, India’s approach to maritime power is characterized by a focus on naval modernization and acquisition of advanced maritime capabilities. India has been investing heavily in its naval forces, including the construction of aircraft carriers, submarines, and other advanced warships. While a strong navy is an essential element of maritime power, it is crucial to ensure that such capabilities are developed and deployed in a manner that is consistent with international law. Under UNCLOS, coastal states have certain rights and obligations concerning their maritime zones, including the right to regulate navigation and other activities in their territorial waters and the right to exploit the resources in their EEZs. However, these rights are subject to certain limitations, including the freedom of navigation and overflight, which is an essential element of the international legal order. In this context, India needs to ensure that its maritime capabilities are not used in a manner that restricts freedom of navigation, or violates the rights of other states. Secondly, India’s emphasis on control of the sea raises some legal questions, particularly in the context of the South China Sea dispute. India has been a vocal supporter of freedom of navigation and has conducted several naval exercises and patrols in the region to assert its presence and support for the rule of law. However, India’s approach to the South China Sea dispute has been somewhat ambiguous. While India has expressed support for the principle of freedom of navigation, it has not taken a clear position on the territorial disputes in the South China Sea. India has emphasized the importance of resolving disputes through peaceful means and in accordance with international law. Still, it has stopped short of taking a clear position on the merits of the various claims. This has led to the criticism that India’s approach is inconsistent with its stated commitment to the rule of law in the oceans. Thirdly, India’s approach to maritime power and control of the sea raises some concerns about the potential for escalation and conflict. The acquisition of advanced maritime capabilities by India and other regional powers has led to an arms race and increased tensions in the region. There is a risk that such tensions could escalate into a full-blown conflict, with severe consequences for regional security and stability. To address these concerns, it is important for India to ensure that its approach to maritime power and control of the sea is consistent with international law and the principles of rule of law. India should continue to invest in its naval capabilities but should do so in a manner that respects the rights of other states and promotes freedom of navigation. India should also take a more active role in resolving the South China Sea dispute and promoting regional security and stability. Analysis and Conclusion India’s maritime laws and policies have not changed from their postcolonial past, even though diplomatic rhetoric and strategic outreach have shifted. This reflects a trend away from mare liberum, or freedom of the seas that has dominated for the past two centuries, and toward a more restrictive mare clausum approach. This shift is not exclusive to India, as many coastal nations are taking a more restrictive stance on freedom of navigation in their own waters. The trend has been to move away from the United States’ perspective on freedom of navigation. This is owing to the rise of other countries and the diversification of power in the international system, which is making the traditional American perspective less relevant. Even if India is increasingly aligned with the United States, the trend is towards more restrictive maritime regimes that place greater emphasis on coastal state control over navigation. In a nutshell, India’s commitment to freedom of navigation and rule of law in the oceans is laudable. Still, its approach to maritime power and control of the sea raises some legal questions and concerns. India needs to ensure that its maritime capabilities are developed and deployed in a manner consistent with international law and the principles of rule of law. As stated previously, India should also take a more active role in promoting regional security and stability and in resolving the South China Sea dispute. |
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