Showing posts with label International Law. Show all posts
Showing posts with label International Law. Show all posts

The long ‘fraternal squabble’ between two European neighbours cascaded into a global glare sooner than expected in the early hours of February 24, 2022, when Vladimir Putin’s Russia in the context of a ‘special military operation’ infiltrated the border of its sovereign neighbouring country, Ukraine. This brazen action has been described by many an analyst as an ‘unprovoked invasion’ of a sovereign country – Ukraine, which is Europe’s second largest country.[1]Orchestrating the largest armed conflict on the European Continent since World War II, Russian President, Vladimir Putin, has come under intense political pressure, economic sanctions and opprobrium from Western superpowers and many other countries across the globe.

Despite the punitive measures meted on Russia by the Western powers – majorly NATO countries and allies – to frustrate the war adventure, the Russian armed forces still continue its ghastly escapades into Ukrainian cities with deadly shelling and infrastructural destruction, mapping into Kyiv. Virtually a month into the invasion, expert studies show that nearly 7 million Ukrainians have been displaced, while over 40,000 military and civilian casualties have been recorded.[2] In the face of severe economic backlashes on the war instigator – Russia, the invasion still presses on. The question that boils for answer is – what role does the law play in this armed conflict? Also, what does international law have to do with the war in Ukraine? Is there a remedy to this human tragedy that can be proffered with the aid of the law? This article does succinctly examine Russia’s invasion under the lenses of international ­­­law.

Relating International Law to the War

International law is an aspect of law that is concerned with regulating the affairs and relations of states, while delineating their rights and responsibilities. TheUnited Nations Charter comes in handy in this respect. This kind of international constitution was devised to avert any form of war. Article 2(4) of the Charter provides that the “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”. The exception to this provision is in cases where force is used as a last resort right of self-defence or used to maintain order and restore peace by the UN Security Council.

Russia, unlike as expressed in President Putin’s speech on the eve of the invasion, cannot rightly term the invasion as an act of self-defence. Russia has contended that its military operation was intended to protect itself and Ukraine’s Donbas Region, which is pro-Russia, from blitz by Ukraine and NATO. Incontestably however, no such assault has been made by those alleged. Thus, self-defence does not avail the accuser in this sense. That is, the invasion remains a flagrant breach of Article 2(4) and does not come under the manifest exceptions thereto.

In international law, judicial mechanisms are quite germane. The International Court of Justice (ICJ) – the judicial arm of the UN – is vested with the jurisdiction to hear matters that deal with disputes between states, or cases of breach of international instruments or conventions by member states. Similarly, on March 16, 2022, the ICJ delivered its order on the request for the indication of provisional measures submitted by Ukraine in the case concerning allegations of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide against the Russian Government. The order is though laudable; however, it is quite infelicitous that it would neither have binding force nor be enforceable due to the singular reason of the offender’s veto power. The veto prerogative of Russia as a permanent member of the UN Security Council would consequently render the decision of the judicial body to be ineffectual.

The International Criminal Court (ICC) also appears ostensibly salient in this discourse. The statute of the court was designed to prosecute violators of international criminal law. Aggression, for instance, is a recurring crime that is prosecuted by the court. The jurisdiction of the court is however limited to its signatories. In contrast to ICJ, not all member states of the UN are subject to the jurisdiction of the ICC. Russia and Ukraine for example are not members of the court. In this regard, should Ukraine accede to an ad hoc jurisdiction of the court to prosecute President Putin and some of his top military officers for the massacre of its citizens, the decision of the court would not bind the ‘aggressors’.

The question of what international law has to do with NATO in this European crisis is still hotly debated. NATO, founded on a 1949 treaty, has expanded its membership to the Eastern Flank of Europe by admitting membership of former Soviet countries, contrary to a contestable agreement with the defunct USSR in the 1990s. Russia’s demands for Ukraine’s non-membership of NATO have been constantly ignored by the western powers.  This especially has spurred the Russian invasion and made the Kremlin to cite its national security interests among the rationales for its ‘special military operation’. Russia’s government has also argued that US-NATO military operations in Kosovo, Iraq and Libya are not different from its operation in Ukraine. All of these are political instigations which in the international law fora have not been analytically addressed but left with lacunae.

Conclusion

Based on the foregoing, one is inclined to conclude that international law has proven to be generally ineffective when it comes to checking great powers’ actions. The wrath of the breach of international law is not felt by powerful nations. Russia – as a superpower – does not seem to have regard for international law as the human carnage rages on in Ukraine. One may thus conclude that international law has little or zero impact in this war. As thus, Russia’s foes – Western powers – are also not resorting to the potency of international law to address this gunboat diplomacy. Rather, they resort to economic battle with the Kremlin, and supplying the victim, Ukraine, with modern warfare to aid its defence against the invading force. Nonetheless, international law is not totally irrelevant in the face of this crisis because countries that are condemning Russia’s actions are defending the international law principle that “relations between states should be shaped by legal principles rather than merely the balance of power”.[3] Be that as it may, one may be assured that the in a 21st century civilization, the world is not going back into the dark days when war was regarded as “an accepted tool of continuation of politics”.[4]

Authored By: Israel Adekunle Adeniyi, a fourth-year student of the Department of Common Law, Faculty of Law, University of Ilorin, Nigeria.

[1]Rand Corporation, ‘Russia’s War in Ukraine: Insights from RAND’ (undated) <https://www.rand.org/latest/russia-ukraine.html> accessed 24 March, 2022.

[2]Arwa Ibrahim, MersihaGadzo, and others, ‘Ukraine latest updates: UN says 6.5 displaced inside Ukraine’ (Aljazeera, 17 March, 2022) <https://www.aljazeera.com/news/2022/3/17/un-says-more-than-700-civilians-killed-ukraine-liveblog> accessed March 25, 2022.

[3]Anthony Dworkin, ‘International Law and the Invasion of Ukraine’ (European Council on Foreign Relations, February 25, 2022) <https://ecfr.eu/article/international-law-and-the-invasion-of-ukraine/> accessed March 25, 2022. 

[4]Ralph Janik, ‘Putin’s War against Ukraine: Mocking International Law’ (European Journal of International Law, February 28, 2022) <https://www.ejiltalk.org/putins-war-against-ukraine-mocking-international-law/> accessed March 25, 2022. 

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It's been more than ten days of Announcement by Russian president Vladmir Putin of so called “military operation” in eastern Ukraine. Heavy civilian and military causality is reported from the both the sides, cities were turned into ruin, economies of both the countries are severely impacted and Europe is on the verge of biggest and the fastest growing  refugee crisis after the end of World War 2. Incidence like these make us wonder the relevance of international law in its role of acting as a deterrent to war and bloodshed in international law.
This article is an attempt to analyze the Russian actions through the perspective of international law and also to comment on its effectiveness on this dispute.

 

RUSSIAN INVASION AND INTERNATIONAL LAW

The united nation charter article 2 (4) restricts the states from using force as a means to resolve the international disputes. Any country which uses force or any other similar means to advance its interest while encroaching into the territorial integrity of the other state violates this fundamental rule of international law. Russian actions including military bombing and pummeling the cities into the Ukraine prima facie can be classified as an act of aggression.

Russian actions within the territory of Ukraine are also running against the international humanitarian law. The most fundamental rule of international humanitarian law explicitly states that civilian and their objects would not be made target of military actions. Russia’s Military Manual from 1990 prohibits “attacks against the civilian population or against individual civilians” and its Regulations on the Application of International Humanitarian Law from 2001 states: “The civilian population as such and individual civilians enjoy protection which, in addition to other international humanitarian law rules, prohibits making them an object of attack. "In reality Russian forces, in order to realize their efforts of seizing key cities of Ukraine like Kyiv are targeting civilian facilities like hospital, memorials. Furthermore, Russian response to the soldiers captured into the war is bringing our focus to Geneva convention of right of prisoners of war. The soldiers captured by Russian forces should be treated with respect and any sort of torture would entail serious consequences for Russia.

The current military actions of Russia are commensurate to constitute the commission of Crime of Aggression, which includes use of force against the sovereign, territorial integrity or political independence of another State, as elucidated under Article 8) of the Rome Statute of the International Criminal Court [ICC].

FALLACIOUS JUSTIFICATION GIVEN BY RUSSIAN AUTHORITIES

Russia has tried to justify its actions by invoking the claim that its military actions are pursuant to its efforts to realize self-determination in the form of independence to two regions Donetsk and Luhansk of Ukraine. Indeed, international law precedents too provide for the ground of self-determination for using force. Russia, in order to take this claim, have to justify that people of Donask and Luhansk are not given basic human right under the Ukrainian regime.Howver, the things stuck at the fact that Donask and Luhansk are already autonomous region outside the influence of Kyiv. Thus, the Russian argument of Determination of people to achieve the self-determination is difficult to prove on reality.

There is also mention of the term genocide by classifying the Russian actions as measure to prevent genocide.The Genocide Convention defines genocide as certain, specified actions intended to destroy in whole or in part a national, ethnic, racial, or religious group. There is no evidence that Ukraine engaged in any of the defined actions and certainly no evidence of an intent to destroy in whole or in part any group in eastern Ukraine. Even if the Ukrainian government had committed human rights abuses against Russians in eastern Ukraine, neither the Genocide Convention nor the U.N. Charter authorizes convention parties or U.N. member states to use force to remedy acts of genocide or serious human rights abuses. Moreover, Russian military actions are limited to these regions. Russia is making multi-pronged advancement towards the Kyiv. Even if we accept the argument of Russia that its actions are to free the people of eastern Ukraine the huge bloodshed done by Russian forces in the western and central Ukraine is difficult to validate.

Ironically Russian authorities are also taking the shield of “self-defense as ground for invading Russia. President Vladimir Putin and other Russian officials have suggested that Russia’s use of force is justified under Article 51 of the U.N. Charter has no support in fact or law. Article 51 provides that “nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations.” It's clear on the face of it that Ukraine is neither have any intention nor capabilities to attack the gigantic power of Russia. Its apprehension that war would begin when Ukraine join NATO can also be rebutted by the fact that Ukraine’s journey to the NATO is still very long and there are high chances that all the member of NATO would never be in any consensus to induct Ukraine into the NATO. Even if we countenance this argument of apprehension of security a multipronged invasion from all the direction is completely disproportionate and runs the principle of “self-defense". Therefore, the armed attack by Russia on Ukraine does not justify the test of proportionality and necessity.The concept of ‘anticipatory self-defence’, while novel, is not recognized in international law. The rigors of Article 51 stands within the strict confines of an ‘armed attack’ and does not allow for a perceived security threat beyond such parameters – which includes President Putin’s perceived threat of ‘expansion of NATO’.

 

FAILURE OF INTERNAIONAL LAW

The inability of international law and organizations like U. N in stopping this war even after more than 10 days of catastrophe is deeply illuminating and require serious deliberations. Russia is moving on untrammeled, expanding over cities over each day and ignoring the sanctions imposed by the west. Moreover, the widely recognized international protector of the peace United nation appears like a silent actor throughout the crisis. The United nation security council tried to pass a resolution against the Russian actions but due to the Russian veto power it also came to a stalemate. Furthermore, other states are worried on President Putin's statement of reacting severely and leading to unprecedented ramifications by the Russia,

To restrict the violation of Internation law, the primary gatekeeper is United nation security council. Under article 24 of UN charter maintenance of international peace and the stability is the primary respobsibitly of united nation security council. One such resolution was drafted and put forward before UNSC on 26 February. Although the Russian veto has completely erased any efforts for the resolution to materialize into the reality. The apparent disagreement within the UNSC is apparent. The United nation security council cannot resort to any coercive means of resolving the dispute including the use of military force because of the obvious reason that Russia is one of the permanent members of UNSC.

With regard to the position of suspending Russia or stripping of its permanent membership from the UNSC as stipulated under Article 5 and 6 of the UN Charter respectively, it would require the recommendation of the same from the Council, which would again be subjected to veto, therefore making it an unviable alternative in front of big powers like UK or US.

Moreover, Russia is not the party to international criminal court .Thus, any efforts to of pursuing this litigation in that forum are also hard to believe as of now. This low to even none impact of international law is the thing that is given confidence to kremlin to continue their armed invasion of Ukraine while other international actors remain mere spectator in the whole process.

CONCLUSION

The Russian invasion of Ukraine is not only in violation of international law but also various humanitarian laws and appears to be unwarranted exercise of military muscle over a complete sovereign country. It has been suggested. The legal garb given to this attack by Russian authorities is also completely unfounded as both disputed regions of eastern Ukraine were already outside the control of Kyiv. Moreover, Ukraine is not going to make an imminent threat.

More important than all of that, the invasion have made the whole world and legal jurist contemplate once again over the effectiveness of international law in preventing conflicts into escalating in military confrontation in the world. Once again it was proved that international law is only effective in preventing small countries. A big superpower like Russia or US can very well act outside its realm and use their established position to advance their own interests the Russian convoys approach the capital of Ukraine and refugees continue to flee the land, world's hope rests on ending this bloodshed as soon as possible. A reform of international legal order focusing on ending the hegemony of big power can really be the best way forward for that.


The blog is authored by Jeetendra Vishwakarma , student of BALLB at NALSAR University of Law

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I.                   Introduction

 

Due to the developments in electronic commerce both developed as well as developing countries are offered unprecedented opportunities. Looking at the short run the benefits in a developed country are concentrated but in the longer run the countries that are developing are at a benefit, the reason as to why the developing countries like India only are at an advantage in the long run is due to the fact that they lack the adequate infrastructure to use the internet to its fullest advantage. The process of e-commerce is very dynamic in nature, i.e. it involves the whole business process of transport, sale, exchange and payments. The following sections will address the following, Section II the concept of ecommerce in relation to international trade , Section III the effect of ecommerce on international trade, Section IV the application of ecommerce in international trade and lastly ,concluding remarks. 

 

II.                The Concept of Ecommerce in Relation to International Trade

 

Through the Internet, electronic commerce alters the transactions and relations in an economy which also stimulates trade and brings about a change which is uncertain yet fundamental in the labor market. The World Trade Organization, simplifies the definition of e-commerceas it is a network of telecommunication of sales, production advertising and distribution. Further, Organization for Economic Co-operation states that it generally refers to online and digital processing of commercial transactions.

 

These advancements in the fields of information technology and communication have the ability to decrease the costs in relation to processing and gathering information considerably. Information being better available to all economic agents. E-commerce reduce the costs in relation to trade and will make it more available in an international as well as local level. E-commerce has a few competitive advantages such as, It reduces transaction costs, it reduces inventory, it shortens the production cycle and lastly, it increasers opportunities.

Fig.1: Source- world bank [i]

 

From the table the surge of the use of the internet can be viewed and also gives an understanding of how people use the internet. According to the first section, internet usage has increased at an exponential rate in recent years. Between 2010 and 2015, the percentage of online consumers in each country increased by around 20%, with the cellular network accounting for the majority of the increase due to its greater spatial versatility in use. This table can also be linked to international trade as the use of the internet grows, the use of e-commerce grows which had a positive effect on international trade too as the base increases.

 

 

III.             The Effect of Ecommerce on International Trade

 

Both developed and developing counties are offered significant opportunities through e-commerce, and the developments in e-commerce is likely to have both a direct as well as an indirect impact on international trade. While using e-commerce the process of trade can be made more cost effective, faster and easier. Information collection is a necessity which is costly when there is a need to acquire information from national borders and this cost being substantially high can be considered a trade barrier. Locating the right resources such as supplies, arranging production and product requirements, the price, quality and along with the delivery and marketing can have expenses which are high, here is where e-commerce and the internet can be used as it involves all actives without the need of the close involvement of buyers and sellers. The use of the internet makes the process far less expensive and therefore, promotes international trade. In the concept of international trade the exporters and importers have their own business purpose, and only when this purpose between both parties are linked can there be a trade.

 

However, the promotion of international trade from e-commerce will depend on the nature and type of goods i.e. A variety of goods that have typically needed physical distribution can now be distributed to customers in digital form through a network. Media products such as videos, and software programs are instances of these. However, since the majority of goods exchanged globally are not delivered in digital form, transport costs will continue to be an important factor.[ii] Therefore, as the use of the internet increases the possibilities in the world of e-commerce also increases and it facilities international trade as it is more cost-effective  and easier to do.

 

 

IV.             The Application of Ecommerce on International Trade

 

Over the years e-commerce as an tool innovation in international trade has shown an immense role as a contribute on global production. Certain ways for global business has been developed by companies involved in the international market in e-commerce and marketing. In India the government has put up certain restrictions that place certain restrictions on international companies selling products in the Indian market through an online market, such regulations are in place in order to safeguard companies in India from facing competition from global leaders like Amazon. Presently, 100% FDI is allowed when it comes to B2B ecommerce in India, but in relation to B2C, there are prohibitions, there is also a local sourcing norm of 30% for international players.[iii]

 

E-commerce in International trade is using a whole process of the use of modern technology for communication, network usage and even electronic transmission of data from a complete establishment of trade relations, transaction settlements and even applying for permits. There are several studies that have questioned if the use of internet has an effect on trade, for example in a study of Central Asia and Eastern Europe by collection data from 20 middle income countries it was proved that place and companies with a better source of information technology and internet, export more in comparison to enterprises which do not have adequate connection. [iv]

 

 

V.                Conclusion

 

Although, the use of e-commerce is increasing at a significant rate, the fraction of use is minute in the trade industry, however it continues to be a sustainable way of trade and its impact will become more dominate.International trade is promoted by the use of the internet as it aids to lift the trade barriers, hence, the ability and quality of international trade will increase with the help of e-commerce. As countries accept imports from economies of an higher income then intern benefit from a spillover of knowledge. The trade in services are also impacted positively through ecommerce.While countries have accepted and accomplished a lot through e-commerce , to realize the full potential in trade they need to consider the certain challenges i.e. information infrastructure, Regulatory framework, legal security, the payment and delivery facilities and the skills recurred for expansion of e-commerce. Thus, electronic commerce can be adapted in expanding international trade markets which leads to a creating an opportunity for foreign trade whole keeping in mind the challenges faced above.

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AUTHORED BY: ARYA KUMAR


[i]R. Schware and P. Kimberley, “Information Technology and National Trade Facilitation,” World Bank Technical Paper No. 317, 1995

[ii] ECLAC. Electronic Commerce, International Trade and Employment: Review of The Issues. UN, Economic commission for Latin America and the Caribbean ECLAS, Washington Office, April 2002, pp 1-30.

[iii]Farhat Fatima, Flipkart-Myntra; From a Merger to an Acquisition International Journal of Management and International Business Studies.ISSN 2277-3177Volume 4, Number 1 (2014), pp. 71-8

[iv]Clarke, G. R.G., (2001). Does Internet Connectivity Affect Export Performance? Evidence from the Transition Economies. Mimeo, World Bank, Washington DC.2001

INTRODUCTION

Often times, people ask themselves,” What happens if a person commits a crime in one country and flees to another country?”One may even think to themselves. ”Let me just rob a bank, leave the country, and live a happy life. I will be free as long as I flee in time. ”Truth is, it is just a matter of time before such a person gets caught. This is due to the concept of extradition. 

Generally, extradition is an act of one country formally handing over an alleged criminal to another country for prosecution for a criminal charge. Therefore in simple terms, if a person commits a crime and flees to another state or country, then the country in which the crime was committed has the right to request for the return of such person from the country which he or she fled to. This whole process depends on the arrangements and agreements between the two countries.

Extradition between countries is governed by treaties. This is because, in International law, no country is obliged to hand over a criminal to another country. The reason being the sovereignty of a country, each country has authority over the people within its borders hence the formation of extradition treaties. A lot of countries have penal code provisions that allow extradition in case there is no extradition treaty between the two countries.

Extradition of a fugitive from India to another country or from another country to India is governed by the provisions in the Extradition Act 1962. Extradition is done only in more serious and big offenses. For example, the extradition treaty between India and the United States of America asserts that extradition can only take place in crimes that are punishable by more than one year of imprisonment. The Principle of Dual Criminality is the most important in Extradition law. It attributes that for extradition to take place, the crime committed must be an offense in countries, the requesting and the requested. Another principle governing the Extradition law is the Principle of Proportionality between the crime and the sentence. The sentence should not be excessively harsh or inhuman as this may result in the decline of extradition. Moreso, the rule of specialty must be considered. The fugitive has to be tried only for the crime he or she extradited for and not any other crime.

There is an ongoing case of Vijay Mallya, an Indian businessman and former Member of Parliament. He is also a former owner of Kingfisher Airlines and former co-founder of Force India One Team, among other businesses he was and is involved in. Mallya is being accused of money laundering and misappropriation. In 2016 he ‘fled’ to the United Kingdom, leaving a debt of approximately Rs 9000 crores. On 18 April 2018, he was arrested by Metropolitan Police in the United Kingdom as he faced accusations of fraud. Since then he has been in and out of prison as the Indian government requested for his extradition from the United Kingdom. He appealed against the extradition in London’s High Court and his plea was rejected.

At hand, his extradition has been withheld as there is a legal issue that needs to be resolved. According to United Kingdom Law, extradition cannot commence before the issue is resolved. Once the issue has been resolved, Mallya will be extradited to India by Central Bureau of Investigation and Enforcement Directorate. The case has been ongoing for almost three years now and all the necessary processes, principles and rules are being followed hence the delay. This delay shows that extradition involves two countries with different jurisdictions and if there is a misunderstood legal issue in either of the countries, extradition can be put to hold.

Another example of extradition is the case of Nirav Modi, an Indian jeweler who has been in prison in the United Kingdom since March last year. He is being charged with fraud and money laundering of approximately $2 billion from Punjab National Bank to which the government of India requested for his extradition. He has made bail attempts which were all denied as he was thought to flee. Another extradition request was made in February this year where he is accused of interfering with the investigation by destroying evidence and threatening witnesses hence resulting in him facing two offenses. Nirav is still in prison and awaits either confirmation or rejection of his extradition by the United Kingdom.

The above cases are similar in the sense that men are businessmen, they are Indian nationalities, they have been requested for extradition by the Indian government and their cases involve fraud and money laundering. In both cases, the Indian government sent a video showing Mumbai’s Author Road Jail where the fugitive is to be held if they are to be extradited. The video showed all the necessary precautions taken to prevent the coronavirus and any harm that can endanger the lives of Mallya and Modi. This proves that Human Rights are being greatly considered in the extradition process. Looking at how much time has been taken for the confirmation of the extraditions, it is evident that the Indian jurisdiction underestimated the process. The British lawyers are seemingly giving them a hard time as they sharply criticized the state of the papers, the numbering, and indexing in particular. Using these cases and the concept of extradition, one can assert that extradition is playing a great role in international cooperation to suppress crime as it promotes countries to stand in solidarity in fighting crime.
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Introduction:-

 As per the Kafala System, a migrant worker’s immigration status is legally bound to an individual employer or sponsor (Kafeel) for their sponsor period. In this case, a migrant worker cannot enter the country, transfer employment nor leave the country for any reason without first obtaining the explicit written permission from kafeel. Additionally, the worker must be sponsored by his kafeel to enter the destination country and remains tied to this kafeel throughout his stay in that country[i]
Oftenly Kafeels use this system to abuse the migrant workers by exerting further control over them. Kafeels confiscate their passports and travel documents, despite legislation in some destination countries declares this practice as illegal. The power that the kafala system delegates to a sponsor over a migrant worker can be termed as a contemporary form of slavery. This system creates an environment ripe for human rights violations and erosion of labor standards. The author through this article aims to shed some light on the background and current developments of the Kafala system in the global scenario. The author will also discuss this system under the umbrella of International law. Finally, the author will conclude by giving his outlook.

Background:-

The kafala system began in the 1950s when several middle east countries started hiring foreign workers to accelerate development following the discovery of oil. This system was formulated to regulate the relationship between employees and migrant workers. This system is now established as a common practice in the Gulf Cooperation Council (GCC) countries such as Bahrain, Kuwait, Oman, Saudi Arabia, UAE (United Arab Emirates), etc. This system was formulated keeping in mind an economic objective i.e. to provide temporary, rotating labor that could be rapidly bought into the country in an economic boom and expelled during the less affluent periods[ii].

Changes and Developments in the global scenario:-

There has been an overwhelming condemnation of the Kafala System. Several international organizations and civil societies have demanded to abolish this system and replace it with an alternate labor migration governance policy but as of now, all the GCC countries lack the political will to abolish this system. The extent of the reform that should be sought remains under debate often underpinned by the fear that advocating for a comprehensive reform of the Kafala system will lead destination countries to seek workers from alternate countries. Several destination countries have made reforms in this system like:
· Jordan introduced a standard contract in 2003 and included domestic workers under its labor law in 2008. In 2009 Jordan also passed a law against people trafficking that criminalizes forced labor for exploitation[iii].
· Istanbul introduced a Unified standard contract in 2009[iv].
· Oman introduced a Law in 2003 making it illegal to loan workers to other employers[v].
· United Arab Emirates (UAE) introduced a wage protection system in 2009. Abu Dhabi Department of Justice plans to create a court specialized in looking into cases involving domestic workers[vi]

Some Major Reforms: In Several GCC countries, major reforms have been introduced to end the Kafala System.

  1. Bahrain: - Bahrain ended the migrant worker’s dependence upon employers during entry and exit process. Bahrain provided some degree of employment mobility to the migrant workers as they could change employment without the consent of the current employer, this is a positive acknowledgement of a worker’s right to freedom of movement. Bahrain also allowed the migrant workers to seek new employment provided they give one month notice before their employment contract expires[vii].
  2.  Kuwait:- Kuwait announced that it would abolish the Kafala in February 2011, however instead changed one restriction of the system which made it easier for the migrant workers to change sponsors with the exclusion of migrant domestic workers[viii]
  3. Saudi Arabia: - Recent media reports state that the Ministry of Labor has drafted the new legislation that will end individual sponsorship in the Kingdom. The change would transfer sponsorship to newly created recruitment and placement agencies who will hire out employees temporarily thus the company becomes the migrant worker’s sponsor[ix]

Kafala System vis-a-vis International Law:-

A worker’s rights related to the just and favorable condition of work is protected under the spectrum of International Human Rights. As per article 7[x] of the International Convention on economic, social, and cultural rights, everyone has a right to the enjoyment of just and favorable conditions at the workplace. Under the kafala system, a migrant worker is humiliated till his death which is a transgression of his right under this article. International Labor Organization (ILO) in article 1(b)[xi] its convention no. 105 which focuses on abolition of forced labor prohibits the use of a forced or compulsory labor as a method of mobilizing and using labor for purposes of economic development. Not giving the appropriate legal protection to the migrant workers is a gross violation of ILO’s Convention no. 111[xii] and International Convention on the elimination of all forms of racial discrimination (CERD)[xiii] as it amounts to discrimination.

Conclusion and Recommendations:-

Conclusively, the author wants to strongly condemn the kafala system as it grossly transgresses the basic human rights of an individual. This problem will not be solved by small changes but a major reform is the need of the hour. The mandatory sponsorship system for the migrant workers should be abolished as it is very arbitrary. Countries should take away the power of the employers which empowers them to secure and renew migrant worker’s residency and cancel it anytime. Migrant workers should not be required to acquire the consent of their employers before leaving and changing jobs. All the GCC countries should take every necessary and reasonable step to end this anathema as every human being including the migrant workers, who can’t even afford the basic amenities have some basic human rights guaranteed under several international conventions and they shouldn’t be abridged from these rights.

References:-

[i] The “Kafala” system explained, 3 Nov 2020, 9:42 AM, https://www.fairwork.nu/en/2018/12/11/the-kafala-system-explained/.
[ii] Liza Kane Hartnett, Kafala System- A gateway to Slavery, 3 Nov 2020, 9:45 AM, https://humantraffickingsearch.org/kafala-system/.
[iii] Aznar Khan, Reforming the Kafala, Challenges and Opportunities in Moving Forward, 3 Nov 2020, 9:48 AM, https://journals.sagepub.com/doi/abs/10.1177/011719681102000303?journalCode=amja.
[iv] Id. [v] Id. [vi] Id.
[vii] Bahrain Moves to reform Kafala, Exclusions Remain, 3 Nov 2020, 9:53 AM, https://www.adhrb.org/2016/10/bahrainkafala/#:~:text=The%20new%20permit%20is%20unprecedented,renders%20them%20subject%20to%20abuse.
[viii] Kuwait considers reforms to Kafala labor system, 3 Nov 2020, 9:55 AM, https://gulfbusiness.com/kuwait-considers-reforms-kafala-labour-system/.
[ix] Rayhan Uddin, Saudi Arabia set to abolish kafala system, 3 Nov 2020, 9:57 AM, https://www.middleeasteye.net/news/saudi-arabia-abolish-kafala-migrant-workers#:~:text=The%20reform%20is%20due%20to,currently%20subject%20to%20the%20system.
[x] International Convention on economic, social, and cultural rights § 7(1966).
[xi] ILO convention no. 105 § 1(b) (1957).
[xii] ILO convention no. 111 § 1(1958).
[xiii] International Convention on the elimination of all forms of racial discrimination § 5(1965). 

Introduction

Many of us have seen China seeking to dominate the World economies with its enormous investments in various countries/businesses/economies. Recently accusation has been raised against China for not sharing the information regarding the spread of COVID-19 (the novel coronavirus SARS-CoV-2) In this epidemic more innocent civilians were killed than died in a series of wars. It takes years to restore economies, and the social and psychological effects can never be overlooked or accepted. In addition to the economic harm done by the coronavirus, the mortality and suffering done to the inhabitants of the planet cannot go unresolved. 

In 2002, the Guangdong province of China spread the SARS outbreak and by 2003 infected 29 country-states. Seven hundred seventy-four people were affected by the epidemic. The World understood that this cost of innocent lives could have been saved if China had not for several weeks, censored important information on public health and safety. This unfortunate incident resulted in the implementation of the International Health Regulations (I.H.R.) by the World Health Organization (WHO) and its constituent nations in 2005. Allegations were raised against China to have consciously refused to abide by the I.H.R. guidelines in attempting to stop this novel coronavirus from spreading.

In November 2019, Wuhan was the site of the outbreak of the currently identified Covid-19 virus in the Hubei province of China. The national government of China has managed to patch up the details of the epidemic by targeting doctors who might advise of a new infection. If China had taken prompt steps to take account of the fact, it would have contained the virus in sooner December 2019 itself. Li Wenliang, an ophthalmologist, revealed the information online on December 30 at Wuhan Central Hospital. While the public health authorities in Wuhan requested details on the spread of " pneumonia unclear-cause," Li Wenliang's warning on the latest disease had been suppressed by Government officials. The Municipal Health Commission of Wuhan misrepresented on December 31 that the COVID-19 is non-transmitted diseases. China delayed until February 14, 2020, to reveal about 1700 positive cases of COVID-19. It is evident that for almost two months, China's administration withheld and refused crucial public health information.
China's Liability under International Health Regulations with compliance with WHO's Constitution

The pandemic does the worldwide harm to individuals, the environment, and culture. The severity of the injury has contributed to allegations that China is liable globally for the disease outbreak. Article 6 of the WHO Constitution refers to Public Health Emergencies of International significance (PHEIC). PHEIC, State shall notify the WHO of all public health facts and activities within its jurisdiction within 24 hours of the evaluation. Article 7 obliges all-party nations to exchange all crisis data with the WHO regularly. After verification, Article 11 requires the WHO to transmit that much information with other nations for implementing reasonable precautions. China has disrupted the transmission of data on the outbreak, and China had also shown sluggish behavior for authorizing the WHO team to investigate the Wuhan circumstance. These activities have made it exceptionally challenging for the World Health Organization (WHO) and foreign governments to strategize effectively for this disastrous outbreak.

Concerning violations of I.H.R. guidelines, that is not an unusual situation. Many treaties had not dealt with the compensation for damages caused by the breach of their provisions. Furthermore, treaties do not address that. Moreover, no government has reported that China has contravened its I.H.R. notification responsibilities. The I.H.R. provides a dispute settlement clause, meaning that a foreign government may bring legal action against China that China has breached the I.H.R. and has a duty, in line with the standards of State liability, to provide reparation for damages incurred by the unlawful act.
Liability arose under Customary International law and why such liability is not able to appear any action.

Customary international law states that a State that violates international law "has a responsibility to adequately pay the damage incurred by an external act that is inappropriate." Nations have not actively sought penalties against countries accused of refusing to comply with contractual agreements to disclose diseases or to refrain from implementing trade or travel restrictions that have no medical basis. Due to the convergence of political and epidemiological interests, Countries have not been willing to enforce the customary legislation on state responsibility in terms of contagious diseases.
Allegations by Foreign Governments and their Institutions

The U.S President Trump also welcomed China's reaction to the COVID-19 and even attempted to warn China behind this disease outbreak. U.S President wanted the U.N Security Council Resolution to identify China as the source of the coronavirus.

However, one of the State of U.S. had sue China over economic loss due to COVID-19; however, U.S. courts do not hold any of these civil liability jurisdictions.

Freedom Watch, U.S.A. lodged a lawsuit with the International Criminal Court (I.C.C.) on the development and eventual release of novel coronavirus classified as a biological weapon, against the People's Republic of China (P.R.C.), the People's Liberation Army, Wuhan Virology Institute (WIV) and its head, Shi Zhengli, on April 1 under Article 15 of Rome Statute. French President Emmanuel Macron also criticized the way the disease was treated by China, stating that it had naively assumed that the situation was well managed.

Many governments were claiming that China has breached the I.H.R.and has to negotiate reasonably. On the other hand, WHO lauded China's achievement during the outbreak. The WHO does not determine how state parties view the I.H.R., but the I.H.R. itself grants the WHO such importance and power that no one can overlook its acts in this sense.
China's liability under ARISWA (Draft Articles on Responsibility of States for Internationally Wrongful Acts)

Article 2 of the ARSIWA (Articles on Responsibilities of States for Internationally Wrongful Act) 2001, defines 'wrongful acts' as 'attributable to the state' and that 'constitute a breach of an international obligation.' After the leakage of the virus, the responsibility got transferred from Wuhan Virology Institute (WIV) to President Xi, and all the local Wuhan authorities and all of the Chinese state bodies are responsible for China's misconduct.

China also violated Article 14 ARSIWA by failing to adequately disclose relevantly and transparently information with the WHO in compliance with the I.H.R. and by then prolonging its violation over the full duration during which it proceeded and stayed not in full compliance with its international obligations. The State is obliged to repair the damage caused by wrongful acts as per Article 31 to the whole, both materially and morally.
China's liability under the International Criminal Court

As the Chinese health authorities show the recklessness, China should be held guilty, under Article 7(1) of the I.C.C., of 'other inhuman acts of a similar nature that cause intentionally serious bodily suffering, or physical injury, or body damage' under the 'crimes against humanity' as mentioned.
China's liability under the International Court of Justice in compliance with the U.N. charter and WHO constitution

The WHO Constitution provides organizations with an often-overlooked provision that allows disagreements on the implementation of requirements to the I.C.J. The failure of China's disclosure could probably fail under Articles 22 and 64 of the Constitution, mandating the enforcement of the International Health Regulations and demanding the dissemination of data by government officials. Besides, China's wilfully incompetence in regulating trade in wildlife implies a violation of the WHO's ultimate objective, as enshrined in Article 1. Although untested previously, this pathway assures us to invoke I.C.J.'s controversial competence to evaluate Chinese liability. Article 75 states that the International Court of Justice (I.C.J.) shall refer to any dispute regarding the interpretation of the WHO Constitution. If holistically this is read as a whole, it might allow the I.C.J., unless anything, evaluate Chinese liability, omissions, or commissions, to invoke its contentious jurisdiction.

A pandemic of this magnitude has not been encountered and brought before the I.C.J. All of this can be used to make China accountable as a strong analytical and diplomatic pressure tactic. The approval of the disputing parties is not necessary to call on the advisory jurisdiction of the I.C.J. According to Article 96 of the UN Charter, an advisory opinion on any legal matter could be sought in the United Nations General Assembly, the United Nations Security Council or any other U.N. body. However, it does not have binding authority to give an advisory opinion from the I.C.J. It also requires good faith to be enforced.

Conclusion

It is hard to bring a country like China to the I.C.J. or any other international court. China's submission on the disagreement in compliance with norms to an international forum is extremely rare. China's reaction was not positive, and World had seen this behavior in the South China Sea Dispute, which brought before the International tribunal. The challenge is even more complicated if the perpetrator-state is stable in terms of military and diplomatic relations. China is a core member of the U.N. Security Council, which is vital to remember, and that shall be permitting China to bring up veto power for its cause. Therefore, collective intervention, including trade sanctions against China by member nations, could be one of the possible ways.
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