Hot Off The PressNews

Ministry of External Affairs issues statement with regard to China’s discussion in UNSC on Jammu and Kashmir:

“We have noted that China initiated a discussion in the UN Security Council on issues pertaining to the Indian Union Territory of Jammu & Kashmir.

This was not the first time that China has sought to raise a subject that is solely an internal matter of India. As on such previous occasions, this attempt too met with little support from the international community. We firmly reject China’s interference in our internal affairs and urge it to draw proper conclusions from such infructuous attempts.”


Ministry of External Affairs

[Statemnet dt. 06-08-2020]

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Bimal Julka, Chief Information Commissioner, noted that the RTI application seeking very pertinent information with regard to COVID-19 pandemic was shuttled between one public authority to another and held that the Ministry of Health and Family Welfare shall collate all the information and furnish the same to complainant and on its’ website.

Complainant sought records by way of his RTI application on the following points:

  • Date when the Government of India first received information on the coronavirus/Wuhan virus/ virus affecting China.
  • Whether any communication was received by the Government of India about a possible pandemic like situation in India between the period of November 2019 to March, 2020?
  • Copy of the minutes of meeting that took place into the possibility of declaring coronavirus a health emergency or not between the period of March 5th to March 14th, 2020.
  • Whether the Government of India/any of its ministries or departments had received warnings/alerts/communication from the World Health Organisation on the possibility of coronavirus affecting India?
  • Whether any internal reports on a possibility of a pandemic like situation arising in India was communicated within the Ministry or its departments?
  • Any intelligence information on the coronavirus diseases originating from China possibly affecting India in future?
  • Whether the Government of India/this Ministry or its various departments sought China’s assistance in getting the sample of Virus?
  • Was China requested to share virus genetic sequence?
  • On which date did ministry of health first communicated the information of Virus possibly affecting India to PMO?
  • When was the issue of inadequate PPE discussed in the Ministry?
  • Whether additional funds were sought on fight against the virus. If so the date on which the first request and subsequent requests were made and to whom be furnished?
  • Whether the Ministry proposed a ban on incoming Chinese citizens to India?
  • Whether the ICMR received any reports/communications/internal warnings/memos/internal reports during the period of November 2019 to March 2020 about the possibility of a pandemic like situation in India due to the virus: To this ICMR responded that all the information pertaining to circulars, notifications, etc, is available on the ICMR website.
  • Whether the Government of India/this Ministry or its various departments was monitoring the situation in China and its possible effects on India?

To almost all the above queries, ICMR responded with a standard response — Not pertains to ICMR.

Complainant remained dissatisfied with the respondent’s response.

RTI Act

Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception.

Another significant observation was that, an open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms.

Accountability

Several decisions are being made by the Governments involving huge interventions in the healthcare impacting daily lives of billions of people, hence it is essential that the decisions are thoroughly documented in order for the Government to remain accountable.

Information pertaining to COVID-19

Complainant sought very pertinent information with regard to COVID-19 situation, which could not be made available by the Ministry of Health and Family Welfare.

Commission held that authentic, verified and cogent reply based on factual information needs to be furnished to the complainant as also disclose on the Public Authority website for the benefit of public at large.

Secretary, Health & Family Welfare was advised to have this matter examined at an appropriate level and the Nodal Authority so notified should furnish all the details sought by the Complainant in a clear, cogent and precise manner within a period of 30 days.

In view of the above complaints were disposed. [Saurav Das v. CPIO, CIC/ICOMR/C/2020/672284-BJ+CIC/MOHFW/C/2020/675866-BJ, decided on 23-07-2020]

Hot Off The PressNews

The US House of Representatives has passed a bipartisan legislation, urging China to peacefully de-escalate the situation with India along the Line of Actual Control (LAC). The House on Tuesday, had agreed to consider the bipartisan legislation sponsored by Indian-American Congressman, Raja Krishnamoorthi, along with Congressman Ro Khanna and lawmakers Frank Pallone, Tom Suozzi, Ted Yoho, George Holding, Sheila Jackson-Lee, Haley Stevens and Steve Chabot

This is the second legislative action that has been taken by the US on the issue; the first being an Amendment made to the National Defense Authorization Act (NDAA) by the House in which it unanimously slammed China’s  territorial assertiveness in the Galwan Valley in India and also in other disputed areas such as the South China Sea.

Such moves come across as a show of solidarity by the US, which claims to “stand with its allies and partners like India against Chinese military aggression.” The NDAA Amendment Resolution mentioned that, in mere ten days after reaching an agreement with India to de-escalate tension along the Line of Actual Control, China amassed 5000 soldiers and crossed into previously-disputed territory which was settled as Indian land after the 1962 Indo-China War. As a result of the skirmishes, 20 Indian soldiers and an unconfirmed number of Chinese soldiers were killed in Eastern Ladakh, the de facto border between China and India. The Resolution also acknowledged India’s commitment to peaceful methods of dispute-resolution.


                                                                                                Source: The Economic Times

[Image Source: Times of India]

COVID 19Op EdsOP. ED.

The emergence, subsequent inter-continental spread and the inevitability of the ensuring mounting death toll across almost every region of this planet has exposed the spectacular lack of preparedness of many Governments in facing the COVID-19 pandemic. Notably, up until the middle of January 2020, the novel Coronavirus was not even considered sophisticated enough for human to human transmission and yet by the end of February 2020 continental Europe had been ravaged. In the consequent incursion into and subjugation of the United States of America (USA), the novel coronavirus achieved that which no invading army ever could.

As a direct result of the same and almost without exception, the world, led by America, clamoured to fix culpability upon Communist China. However, it need not be reiterated that no pre-eminent global power in the post-WW2 decades has ever of its own accord ever submitted to the jurisdiction of international law. The western nations, short of bilateral or multilateral reprisals (the validity and legality of which under international law would be questionable at the very least), are therefore wholly bereft of an effective means of bringing the ‘guilty’ to book. Regardless, remedial inadequacy has not deterred those seeking reprisal against the People’s Republic of China (PRC), from filing suits and petitions against PRC’s communist leadership, its armed forces as well as the Institute of Virology situated at Wuhan. These however are nothing but, as the Solicitor General so deftly put it in another context, ‘self-employment generating petitions’.

Succinctly stated, the concept of ‘State responsibility’ vis-à-vis international law arises primarily under three scenarios; (1) breach of obligations arising out of treaties and/or contracts, and (2) international delinquencies. There’s a third area of study i.e. international criminal law, however, that pertains to individual criminal liability and has been discussed separately below. It must also be borne out that though the conceptualisation of ‘sovereignty’ has undergone a transformation in the post-WW2 period of the 20th century, yet devoid of any supranational agency, ‘State responsibility’ in consonance with international law must be tempered by the sovereign autonomy of a nation State.

Insofar as the COVID-19 pandemic is concerned, there evidently does not exist any treaty obligation governing the manner of transaction between the world and the PRC. Thus the discussion surrounding ‘State responsibility’ must revolve around the idea of international delinquency whereby culpability can be attributed to a State in connection with its non-contractual international law obligations. Quite interestingly, in most cases of such nature, responsibility arises as a result of injury suffered by the citizens abroad i.e. aliens in the host nation. However, a key constituent of ‘international delinquency’ is ‘imputability’. Consonantly, if a certain State-action resulting in injury to an alien cannot be directly attributed to an agency of the host State (for instance China in the current scenario) then the same may not amount to fixation of responsibility unto the said host. Naturally thus, no act of a private citizen resulting in injurious consequences for an alien can be termed an ‘international delinquency’.

If one is to consider the present scenario wherein claims against the PRC are sought to be brought forth, no case of international delinquency is made out short of the international community being able to conclusively prove that the Communist Party of China in cohorts with its armed forces and/or other agencies of the State sought to inflict the alleged harm and injury to the global population. It is further imperative to take note of the fact that ‘force majeure/fortuitous event’ presents itself as a complete defence to any such action of State responsibility.

In addition to the above enunciation of State responsibility, it is notably that the clamour to fix criminal liability under international law vis-à-vis the top leadership of the Communist Party of China, makes it crucial that the phrase ‘crimes against humanity’ is understood in terms of its specific legality vide the Rome Statute for International Criminal Court[1]. The Rome Statute under Article 7 explicitly defines ‘crimes against humanity’ as being in the nature of murder, extermination, enslavement, deportation, torture, rape, etc. coupled with an element of systemic attack against any civilian population[2].

Additionally, although the International Criminal Court (ICC) has the jurisdiction to try everyone equally regardless of any official position held thereof, such jurisdiction can only arise by way of (1) the accused person being a national/citizen of a State party to the Rome Statute, (2) the alleged crime of most serious concern to the international community having been committed on the territory of a State party to the ICC, and (3) referral of a matter from the United Nations Security Council (UNSC).

In that regard, fastening of criminal liability unto any Chinese State official is bleak to say the least for not only is PRC a veto-wielding member of the UNSC, it not a State party to the Rome Statute and thus does not recognise the jurisdiction of the ICC. Furthermore, as would become manifest from the definition above, there exists no intelligible and coherent evidence as to satisfy the threshold of international criminal law.

In conclusion, it becomes important to analyse the complaint forwarded before the United National Human Rights Council, Geneva (UNHRC) by the International Council of Jurists. Regardless of the allegations made thereby, it must be understood that though the UNHRC has a very wide ambit and scope to entertains such complaints, it has one of the weakest mechanisms under international law to provide any remedy. No recommendation of the UNHRC has any binding force upon the member States. At the most, a mere cognizance of the matter can be taken by the Human Rights Council and recommendations forwarded thereof to the governing executive of the d State concerned.

An inward looking world as at present will surely find a way to penalise the commissions and omissions of the PRC in due time. Rest assured it will not be by means of the numerous yet woefully inadequate international law remedial instruments at the disposal of the international res publica.


*The Author is a practising Advocate in Delhi

[1] The Rome Statute of the International Criminal Court was adopted on 17th July 1998 at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court and it came into force on 1st July 2002 upon being ratified by at least 60 signatory nations.

[2] ‘Crimes against Humanity’; Article 7 of Rome Statute

Hot Off The PressNews

The second meeting of the Emergency Committee convened by the WHO Director-General under the International Health Regulations (IHR) (2005) regarding the outbreak of novel coronavirus 2019 in the People’s Republic of China, with exportations to other countries, took place on Thursday, 30 January 2020.

The Committee’s role is to give advice to the Director-General, who makes the final decision on the determination of a Public Health Emergency of International Concern (PHEIC). The Committee also provides public health advice or suggests formal Temporary Recommendations as appropriate.

Conclusion

The Committee welcomed the leadership and political commitment of the very highest levels of the Chinese government, their commitment to transparency, and the efforts made to investigate and contain the current outbreak. China quickly identified the virus and shared its sequence, so that other countries could diagnose it quickly and protect themselves, which has resulted in the rapid development of diagnostic tools.

The very strong measures the country has taken include daily contact with WHO and comprehensive multi-sectoral approaches to prevent further spread. It has also taken public health measures in other cities and provinces; is conducting studies on the severity and transmissibility of the virus, and sharing data and biological material. The country has also agreed to work with other countries that need their support. The measures China has taken are good not only for that country but also for the rest of the world.

The Committee believes that it is still possible to interrupt virus spread, provided that countries put in place strong measures to detect disease early, isolate and treat cases, trace contacts, and promote social distancing measures commensurate with the risk. It is important to note that as the situation continues to evolve, so will the strategic goals and measures to prevent and reduce spread of the infection. The Committee agreed that the outbreak now meets the criteria for a Public Health Emergency of International Concern and proposed the following advice to be issued as Temporary Recommendations.

The Committee emphasized that the declaration of a PHEIC should be seen in the spirit of support and appreciation for China, its people, and the actions China has taken on the frontlines of this outbreak, with transparency, and, it is to be hoped, with success. In line with the need for global solidarity, the Committee felt that a global coordinated effort is needed to enhance preparedness in other regions of the world that may need additional support for that.

Detailed statement can be accessed here: WHO Statement on Coronavirus


World Health Organization

[Statement dt. 30-01-2020]

Hot Off The PressNews

As reported by the media, China has introduced a new “Investment Law” on 15-03-2019 with the aim to ease global concerns.

The said law is said to come in effect from 01-01-2020. It replaces three landmark laws passed in the 1970s and 1980s, which set the framework for the country’s transition from decades of economic isolation. This new law is said to replace 3 documents that currently govern the non-Chinese companies, i.e., Law of Joint Ventures with Chinese and Foreign Investment, the Law on Foreign-Capital Enterprises and the Law on Chinese-Foreign Contractual Joint Ventures.

According to the version of law available for public, it promises equal government support to foreign and domestic firms, equal treatment when applying for licenses and that foreign companies will be able to take part in setting industry standards and in government procurement.

[The Washington Post]


Image Credits: https://news.abs-cbn.com/business/03/15/19/china-approves-foreign-investment-law-possible-us-olive-branch

NewsTreaties/Conventions/International Agreements

The Union Cabinet has approved the signing and ratification of protocol amending the double taxation avoidance agreement with China. The Cabinet gave its nod to changes including updating the existing provisions for exchange of information to the latest international standards. Besides minimum standards, the Protocol will also bring in changes as per Base Erosion & Profit Shifting (BEPS) Action reports as agreed upon by two sides. Further the protocol will incorporate changes required to implement treaty related minimum standards under the Action reports of BEPS Project, in which India had participated on an equal footing.

[Source: The Economic Times]

Case BriefsInternational Courts

Permanent Court of Arbitration: A five-judge tribunal constituted under the Permanent Court of Arbitration (“PCA”) in the case between Philippines and China gave its most awaited Award concerning the dispute in the South China Sea. This arbitration concerned disputes between the Parties regarding the legal basis of maritime rights in the South China Sea, the role of historical rights in the South China Sea, the status of certain geographic features in the South China Sea, and the lawfulness of certain actions of China that were alleged by the Philippines as violative of the Laws of Sea Convention

The Arbitral proceedings began in 2013, when Philippines brought an arbitration claim against China under Article 287 and Annex VII of United Nations Convention on the Law of the Sea (“UNCLOS”) before PCA. Since both countries are signatories to the UNCLOS, the legal issues raised revolved around the breach of the convention by China in the South China Sea. However, since the inception of the proceedings, China had blatantly refused to participate in the proceedings as it claimed that the Tribunal had no jurisdiction. Throughout the arbitral proceedings, China returned correspondence from the Tribunal sent by the Registry, reiterating on each occasion “that it does not accept the arbitration initiated by the Philippines.”

Nonetheless, the matter of jurisdiction raised by China was dealt by the tribunal under Article 288 which provides that in situations where jurisdictional dispute arises, the matter shall be settled by the tribunal. Accordingly, the Tribunal had dealt with the matter of jurisdiction and admissibility of Arbitration proceedings and held that it had jurisdiction in the present matter.

Philippines in its submissions put forth several major claims. Firstly, Philippines sought a declaration that China’s claim to rights within the ‘nine-dash line’ marked on Chinese maps are without lawful effect as permitted by UNCLOS. Historic rights claimed by China represented China’s view regarding its sovereignty over all maritime features within the well-known nine-dash line.

However, the Tribunal in the present judgment held that China’s historical rights were extinguished when UNCLOS was signed. Since, the rights are incompatible with the exclusive economic zones (“EEZ”) as provided in UNCLOS, China’s nine-dash line claim in the South China Sea is invalid. Not only the incompatibility with UNCLOS was highlighted but also the lack of evidence provided by China was held to be an important aspect of rejecting China’s claim of nine-dash line.

Second claim made was concerning the entitlements to maritime zones that would be generated under the Convention by Scarborough Shoal and certain maritime features in the Spratly Islands that are claimed by both the Philippines and China. Under UNCLOS, “[r]ocks which cannot sustain human habitation or economic life of their own”, submerged banks and low-tide elevations are incapable of generating any entitlements to EEZ of 200 nautical miles or continental shelf. To this, Philippine sought a declaration from the tribunal regarding absence of such entitlements claimed by China in the Spratly Islands, as well as Scarborough Shoal, as they fall in one or other category as mentioned above.

The tribunal on deciding the second claim made by Philippines based its reasoning on the objectivity of a feature to exist in natural condition and whether it can either sustain community of people or economic activity etc. And hence, on objectively analyzing the Spratly Islands, the tribunal held that none of the islands and reef like mischief reef, in question was capable of generating EEZs or continental shelf as claimed by China. Therefore, the tribunal declared that since none of the features are capable of generating EEZ, they are within the EEZ of the Philippines since those areas are not overlapped by any possible entitlement of China.

Thirdly, the Philippines sought declarations that China has violated the Convention (a) by interfering with the exercise of the Philippines’ rights mainly with respect to fishing and oil exploration; and (b) had failed in protecting and preserving the marine environment by tolerating and supporting Chinese fishermen in harvesting of endangered species.

The Tribunal held that since features like Mischief Reef do not possess EEZs due to submerging at high tide, the sovereignty lies with Philippines in regards to such entitlements. And on continuance of the reasoning laid down, it held that China had interfered with Philippines rights by prohibiting them to fish in Philippines EEZ, Philippines oil exploration at Reed Bank. China had restricted Philippine fishermen after May 2012 to exercise their traditional fishing rights at Scarborough Shoal. The tribunal, however, on duly recognizing the traditional fishing rights at Scarborough Shoal of fishermen of both China and Philippines nationality, noted that neither country could restrict any traditional fishing rights of the fishermen.

With regards to Philippines contention on China’s attempt in depleting marine environment of South China Sea, the tribunal observed that the ecosystem and habitat in the South China Sea had depleted and endangered species were being threatened. It was also realized by the tribunal that Chinese authorities had intentionally ignored the harm caused by Chinese fishermen to the endangered sea turtles, coral and giant clams by engaging themselves in harvesting activity. The failure in due diligence by Chinese authorities led to depletion and damage to the coral reefs in the South China Sea.

Not only China was held responsible for violating Philippines’s sovereign rights and International law in regards to its failure to protect the marine environment while creating artificial islands at Mischief Reef. But also was held responsible for not stopping Chinese fisherman from gathering endangered turtles etc. Also, the artificial islands constructed by China without any authorisation from Philippines violated Philippines’s sovereign right over its own territory. [South China Sea, In Re (Republic of the Philippines and The People’s Republic of China), 2016 SCC OnLine PCA 1, decided on July 12, 2016]