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Can China Be Sued At The ICJ for Causing Transboundary Harm For Covid-19 Pandemic?

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In 1931, Samuel Beckett in his scholastic work ‘Proust’ wrote that ‘There is no escape from yesterday because yesterday has deformed us, or been deformed by us . . . [W]e are rather in the position of Tantalus, with this difference, that we allow ourselves to be tantalized.

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These words appear quite relevant in the present context of global outbreak as the damage has already been done and now we have to mitigate and eliminate this outbreak through international cooperation and national actions.

We, humans, are responsible for what we perceive as for what we have been doing and what we intend to do. We have made everything possible, with our potential; we have created, we have destroyed and we have recreated. In the scheme of this entire process of human evolution, we have encountered several upheavals.

 

However, in the making and evolution of this so-called ‘human world’, law has played a key role as an intermediary between our ideas and our capabilities. The contentious debate over the genesis of COVID-19 has posed several notions surrounding state responsibility over transboundary damage. The news and documentaries are doing several rounds over this debate, which has inspired several researchers like me to build our understanding of COVID-19.

That being said, irrespective of its origin, one crucial question still remains- How far the perspectives of International Law address the issue of transboundary harm? In the given context, a couple of international legal instruments are relevant:

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The Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, 2001

In 2001, during the 53rd session of the International Law Commission, The Draft Articles on Prevention of Transboundary Harm from Hazardous Activities was adopted. The given Draft articles are applicable to those activities which are not prohibited by international law that involves a risk of causing significant transboundary harm through physical consequences (Article 1).

The prime aim of this Draft Articles of 2001 was to ‘deal with the concept of prevention in the context of authorization and regulation of hazardous activities which pose a significant risk of transboundary harm (para 1 of General commentary)’.

The notion of prevention in the preambular part of the 2001 Draft Articles is based on an understanding of ‘prevention’ as a duty oriented and procedural approach to deal with the probable damage in the initial phase itself, where the actual damage is yet to happen. However, in the present situation, we are way ahead of that phase but the element of liability continues.

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Prevention of any transboundary harm and its adverse impact on the human health, property and ecosystem vitality at large has been accepted and even addressed via several multilateral treaties on several transboundary issues such as the movement of hazardous wastes, nuclear accidents, space objects etc.

The Draft Articles also perceives ‘ultrahazardous activity’ as an activity with a danger that is rarely expected to materialize but might assume, on that rare occasion, grave (more than significant, serious or substantial) proportions (Article 1.2). Albeit, no list of activities were enunciated back then with a reason to believe that any such list of activities would become obsolete due to the rapid development of science and technology.

The COVID-19 and its magnitude fit within the scheme of ultrahazardous transboundary harm. If the Wet Markets and illegal trade of Wildlife can be proved to responsible for this outbreak like its predecessor SARS-CoV of 2003, then the hazardous wet animals and wildlife farming industry can be held accountable for transboundary harm.

The criterion of ‘activities which are not prohibited by international law’ was adopted with an objective to distinguish the notion of international liability from the notion of state responsibility. The adoption of the said criterion was done with an intention to allow any state which is likely to be affected by an activity which is responsible for transboundary harm to demand from the state of origin, (in this case, presumably The People Republic of China) compliance with the obligation of prevention, even if the activity itself is not prohibited.

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At the same time, any the non-fulfilment of the duty to prevent for minimization of risk would not give rise to the implication that the same activity itself is prohibited. In such situation, the element of State Responsibility will be invoked to ensure the implementation of obligations and civil responsibility. The principle of international cooperation and good neighbourliness is also a guiding factor behind this international legal instrument.

Coming to another criterion of ‘state of origin’, the same is based on the concepts of ‘control’, ‘territory’ and ‘jurisdiction’. The concept of ‘territory’ was inducted as a dominant criterion with an intention to emphasize upon the territorial link of the origin of the ultrahazardous activity.

The concept of ‘jurisdiction’ as included to cover activities that have been undertaken by the state of origin within its territory and activities that are covered under international law, where it is authorized to exercise its authority and competence and the concept of ‘control’ was enshrined to attach certain legal consequences to a state whose jurisdiction has not been recognized by the international law (both de facto & de jure jurisdiction).

Another criterion is to establish the connecting link of significant transboundary harm and the same being caused by ‘physical consequences’. Hence, this criterion is crucial in the present global context because a causal relationship (physical link) must be there with the activity that has caused the transboundary effects.

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Presumably, if China is the state of origin then instead of concealing the same from the entire world and suppressing its own citizens from revealing the outbreak information, it should have conducted a timely assessment and if it is presumed that China has done the latter then as per Article 8 of the Draft Articles, it should have provided the states likely to be affected, a timely notification of the risk associated with the virus and also transmitted all available technical and other relevant information related to COVID-19.

Here China failed to ensure international cooperation and act in good faith which has now affected due to this pandemic. In fact, the 2001 Draft Articles mandates the state of origin to develop an emergency preparedness (Article 16) by adopting a contingency plan in cooperation with all other affected states and international organizations like WHO.

The state of origin (presumably China) bears a primary responsibility for developing this contingency plan that would involve the adoption of safety standards, maintenance of equipment and facilities, training of workers and building an early warning system. Instead, the initial trend shows a lack of such measure. In fact, China is now being widely criticized for even overcharging for PPEs and other medical necessities, which was once donated by Italy. This action is not a reflection of good faith and international cooperation. China can be held liable for the violation of the international principle of good faith as enshrined under the Vienna Convention on the Law of Treaties (Article 31)

Draft Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities with commentaries, 2006

Another significant international legal instrument, which is relevant in the given context is the Draft principles of 2006 which deals with the allocation of loss in the situation of transboundary damage due to any hazardous activity.

The said Draft Principles were adopted with an objective to provide guidance and necessary arrangements for compensation for any hazardous activity. It encourages the states to even adopt bilateral and multilateral arrangements to develop such an arrangement of compensation. As per the preamble of the said Draft Principles (para 6), the states are responsible under international law for infringement of their prevention obligations.

Principle 2 (f) defines ‘victim’ as not only any natural/legal persons but also the State that suffers damage. In order to determine the damage which is eligible for compensation, the International Court of Justice has already determined a threshold in the cases of Trail Smelter and Lake Lanoux.

The Possible Judicial Remedies

To bring the matter to the International Court of Justice (ICJ), the WHO constitution has provided a clause under Article 75. However, it order to invoke the same, there is a prerequisite that “if any question or dispute concerning the interpretation or application of the WHO Constitution which is not settled by negotiation (a pacific mode of settlement of dispute under international law) or by Health Assembly shall be referred to the ICJ unless the parties concerned agree on another mode of settlement.

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In addition, Article 56 of the IHR provides a clause for arbitration in an event of dispute. Albeit, Article 75 of the WHO Constitution mandates negotiation as a prerequisite before approaching ICJ but in the recent case of India v. Pakistan (June 2019), it was held by ICJ that recourse to the pacific mode of settlement like arbitration is not a prerequisite to approach ICJ but the challenge will be for the other states concerned to invoke Article 36 para 2 of ICJ.

The states shall also submit to ICJ, the disputes relating to international law on the basis of non ultra petita doctrine (not beyond the pleadings), which means that the ICJ should not unnecessarily decide questions of law which is more than it has been asked to.

If this option doesn’t pass muster, then the ICJ may be approached for an advisory opinion by invoking Article 76 of WHO Constitution, which enunciates that ‘on the authorization of United Nations General Assembly or upon authorization in accordance with any agreement between the organization and the UN, the organization may request the ICJ for an advisory opinion on any legal questions arising within the competence of the Organization’.

There are several instances of ICJ’s advisory opinion, for example, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996. In addition to the Draft Principles of 2006, which deals with compensation to victims, a precedent of ICJ’s advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory from 2004 is a relevant where victims were compensated for the losses.

Another positive angle of the advisory opinion is that the states are not required to give consent for approaching ICJ and any concerned state can render evidence that can prove that China failed to comply with the aforementioned international legal instruments.

Even though the Advisory Opinions of ICJ are not binding in nature but the same is relevant because it carries moral authority, legal weight and the same is also significant for the development of international law and acts as guidance for state actions in the future.

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Nevertheless, all the hullaballoos and contentious debates surrounding the origin of COVID-19 are yet to be clear beyond any reasonable doubts. One should also not discard that China is a permanent member of the UN Security Council and enjoys the Veto power.

Even if several affected states decide to approach ICJ, it will be even more difficult to prove that China is the exact country of origin. Given, several counterclaims made by China itself, it will be another tough nut to crack. Nonetheless, the Advisory Opinion of ICJ appears to be a viable option from this juncture.

However, time and events in the near future will tell us, how and where the projectile of this outbreak will take us. Until then, we have to keep our hopes intact and pay utmost respect to the principle of international cooperation and good faith.

Chiradeep Basak is an Assistant Professor of Law at the National Law University and Judicial Academy- India

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India Bets Big On Nikki Haley To Emerge As Vice Presidential Candidate Under Trump

Nikki Haley has echoed some of the same arguments Donald Trump has made on national topics such as cancel culture, defunding police forces and statue removal, although the tone and frequency between Trump and Haley differ dramatically.  

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India has pinned hopes on Nikki Haley to become the US Vice President (VP) should Donald Trump get re-elected this November. Haley, a first-generation Indian American, is expected to strengthen Indo-American relation and also attract a lot of voters including women and minorities.

According to the reports, there is speculation that Trump might switch out Vice-President Mike Pence for Nikki Haley as his running mate in the hopes of boosting his lagging approval numbers among the broader electorate.

Despite resigning as US Ambassador to the United Nations, Haley has been active in politics. She has been fundraising for Republican congressional candidates as well as in the Senate and gubernatorial arena.

She has set up a non-profit organization to boost her policy priorities and has continued to pen editorials on foreign policy. And Hailey has retained a small, tightly knit orbit of advisers.

The former governor of South Carolina, Haley is one of the people who left the Trump Administration on good terms. She has even promised to campaign for the President for his re-election bid.

Haley has echoed some of the same arguments Donald Trump has made on national topics such as cancel culture, defunding police forces and statue removal, although the tone and frequency between Trump and Haley differ dramatically.

According to experts at EurAsian Times, Haley’s recent moves can be seen as a carefully executed plan to stay involved in key Republican policy circles and the national discourse. Haley has fundraised for almost a dozen Republican Senate candidates, many of them in tough re-election races, and has been a special guest at Republican Governors Association (RGA) events.

While Haley has dismissed reports about her running for VP, her being an influential person of colour could help Trump win constituencies he is currently losing.

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The US Presidential elections are a spectacle observed globally and India would be hoping Trump wins and Haley gets elected as the VP. Haley enjoys nationwide popularity amongst Indian-Americans and her election as VP could lead to stronger ties between Washington and New Delhi.

She has natural links to India with her parents having emigrated to the US in the 1960s from Punjab. Haley has often pointed out that India is an example of a free government and recently even applauded New Delhi’s decision to ban 59 Chinese applications and for standing up to China.

With an Indian-American at the helm of affairs, New Delhi would see it as an opportunity to get closer to Washington. It could lead to India benefitting in the areas of trade, defence and investment and would be a huge blow to neighbours China and Pakistan.

US Presidential elections are scheduled to take place in November and will be contested between Donald Trump and Joe Biden. While Biden’s re-election does not mean that India and the United States will have weak relations, having Trump in the White House and Haley as VP would definitely lead to stronger Indo-American ties.

Armaan Srivastava. Views Personal

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Americas

Russian T-14 Armata Tanks Now On Sale; Hopes To Challenge US’ M1 Abrams

The T-14 is part of the Armata’s heavily tracked standardized platform, which serves as the basis to develop the main battle tank, an infantry fighting vehicle, an armoured personnel carrier and other armoured vehicles.

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Russia’s T-14 Armata tank will be up for sale from 2021. This was announced by Denis Manturov – Industry and Trade Minister of Russia. He said that they are already receiving requests for the deadly T-14 Armata tanks from several foreign customers.

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The T-14 is part of the Armata’s heavily tracked standardized platform, which serves as the basis to develop the main battle tank, an infantry fighting vehicle, an armoured personnel carrier and other armoured vehicles. It has fully digitized equipment, an unmanned turret and an isolated armoured capsule for the crew.

“Russian producers are ready to offer potential buyers both air defence systems, such as the S-300 and the S-400 and advanced aircraft and helicopters,” explained Dmitry Shugayev, Head of Russia’s Federal Service for Military and Technical Cooperation.

“We are preparing the MiG-35 light fighter for sale and are promoting the latest T-14 ‘Armata’ tank,” he added.

The Armata T-14 was first demonstrated during the Victory Day Parade in May 2015 in Moscow. The actual production of the tanks was delayed. The first nine T-14 Armatas were originally planned to be handed over to the Russian Ground Forces (RGF) in 2018. This date then got pushed to 2019 and then to 2020.

Russia hopes that the T-14 Armata tank will give a tough competition to America’s M1 Abrams that destroyed thirty-seven of the Soviet-designed T-72s during the 1991 Gulf War.

T-72s remain Russia’s primary battle tank, supplemented by turbine-engine T-80s and four hundred more advanced T-90s. According to Sébastien Roblin, an expert on security and militarywhile Russia may finally have a 125-millimetre sabot round that can threaten Western main battle tanks at the range, only its handful of new T-14s tank are capable of actually using it.

Experts claim that the 2A82 gun could be retrofitted to numerous older T-90s and T-72s so far appear not to have materialized.

Despite Russia’s defence spending, the Russian military has continued with the production of the new tank. The production is overseen by Rostec Corporation, the Moscow conglomerate that specializes in consolidating strategically important companies in Russia’s defence sector.

It has undergone field testing in Syria. Although the extent of testing and the results are still unclear, a Russian media outlet suggested that “one Armata was completely destroyed.” There’s no confirmation on that but it might not look good to its buyers.

“It [the T-14 Armata tank] is expensive because it is still undergoing extra trials and modernization after the defence ministry requested additional technical solutions in order to begin serial supplies starting from the next year under the existing contract,” said Manturov in April this year.

He further said that next year, when serial supplies of these tanks to the defence ministry are launched and an export certificate is obtained, they will begin to work with foreign clients. “Preliminarily, bearing in mind that we cannot provide all the documentation to our foreign clients. We do have preliminary orders,” he added.

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US-China Tensions: US Wants India To ‘Match Its Weight By Actions’ In The South China Sea – Experts

Tensions between the US and China increased when the US deployed two aircraft carriers in the South China Sea with a clear message to Beijing that it doesn’t welcome China’s belligerence in the region.

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Amid inflating tension between the US and China, the US administration is keen that India should play a vital role in the South China Sea and match its weight by actions.

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Recently, the US deployed two aircraft carriers in the South China Sea with a clear message to Beijing that it doesn’t welcome China’s belligerence with its neighbours and increasing the regional tensions.

Chinese Foreign Ministry, in response, accused the US of deliberately sending its ships to the South China Sea so that it can demonstrate its strength and accused the US of trying to create a rift between the regional countries.

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This is not the first time that the US and China have been engaged in muscle-flexing in the region. Experts say that the situation is slightly different this time as the coronavirus epidemic has drastically increased tension between the two nations.

The South China Sea which lies between Indonesia and Vietnam is spread over about 3.5 million square kilometers. China, Philippines, Vietnam, Malaysia, Taiwan and Brunei have claims over the waters which is believed to be high on natural resources.

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After the vicious India-China border dispute, there have been talks that India could play an active role in the South China Sea. India considers the South China Sea as a neutral place and believes that this neutrality should be maintained as these waters do not belong to any particular country.

Experts believe that India has come close to the US due to degenerating ties with China, but it is not correct to assume that India will play a very big role in the South China Sea. Experts say that – the US views India as a massive regional force and wants New Delhi to challenge the Chinese aggressively, something the Indian government is not too interested in.

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Experts recall that when Obama came to India in 2015, New Delhi said that it was committed to maintaining peace and stability in the South China Sea and Beijing was quick to denounce the Indian statement.

After that, India never directly mentioned the issue by taking the name of China. On various occasions, India has talked about China’s expansionism but without naming it directly, which clearly suggests that New Delhi does not want to offend Beijing.

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Recently as EurAsian Times reported, India permitted Australia to join the annual trilateral Malabar naval exercise involving India-Japan-USA. With Australia joining in, this could cement the QUAD alliance which Beijing considers as an anti-China grouping.

The decision to allow Australia to be a part of exercise comes at the heels of Chinese hostility in Galwan Valley, South China Sea (SCS) and the Strait of Taiwan. According to experts, the addition of Australia could re-activate the Quadrilateral Alliance (QUAD) between Australia, India, Japan and the US, which New Delhi had been avoiding so far.

OpED By Nitin J Ticku. Views Personal

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