Prof. Dr. K. L. Bhatia
Writings are on the wall while lettering about Corona virus (COVID-19) alleged to have emerged from invisible hands of invisible State which has an ulterior design to become only a world super power. This seems to be altogether a different war syndrome than World Wars I and II. This new syndrome of strange disease has engulfed the entire human race the world over and hence within the fold of international crime against humanity. The whole world populace suffers in health and purse; the entire human community has come to stand still position; the Nation States have become the victims of the unprecedented pandemic’s consequential lockdown and quarantine bringing the fall of economic growth, infrastructure growth and regression around.
The whole world is in the grip of Corona Virus alias Chinese Corona Virus (CCV). It has brought invisible as well as unspeakable miseries to the human beings since alleged CCV happens to affect the human beings by penetrating the human body impalpably and unnoticeably. It has brought horrifying results of shattering experiences. It’s impetus may prove to be worse than the Decline and Fall of Roman Empire; and, Rise and Fall of Third Reich “a wave of amnesia that has overtaken the humanity”. The alleged CCV seems to be a war exponentially more horrific not merely in degree and quantity — in death toll and geographic reach — but also in consequences as it appears the new mode of mass murder. Should the alleged CCV be considered as genocidal? The answer to it is a matter of contention.
It is apt to revisit the International Bill of Human Rights, namely, United Nations Charter, Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Additional Protocols, Vienna Declaration, and Rome Statute, which are the basis for the evolution of human rights and their promotion, observance, preservation and adherence so that humanity sustains posterity for ages. Those are, therefore, the most beautiful works of the literature of the world, ocean of milk, the cradle of humanity, and a law of life for blissful statecraft that shall be in the advancement of life, liberty, and human dignity.
While discussing the human rights scenario vis-à-vis CCV one may recall that man is born free, but everywhere he is in chains — quarantine and containment — because the alleged State represses the physical freedom that is his birthright and does nothing to secure his civil freedom. Situationally, the alleged CCV has brought repression to the human civilized societies by the syndrome of invisible germ or insect inasmuch as the chemical and atomic weapons brought miseries to the human life during world wars. And, to mitigate, tone down, alleviate, ease and diminish the repeat or revival of such like syndrome in future, the member States of the United Nations solemnly pledged to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small have resolved to combine our efforts to accomplish these aims. In order to have permanent peace and security, the purpose of the United Nations Charter is to “achieve international co-operation in promoting and encouraging respect for human rights and fundamental freedoms for all.”
The apparent message of the UN Charter is the emphasis of the provisions on the importance of social justice and human rights as the foundational fundamentals for the stable international order to the development of standards concerning human rights, fundamental freedoms and basic rights. The philosophy is inherent in the aim of all political association to the conservation of the natural, inalienable and imprescriptible rights of man in pursuit of human happiness. Should such rich concept and perception of human rights be victim of any political whims and frenzy? Should men, women, children and posterity be a play thing in the hands of such mischievous design as of CCV? The future alone shall determine the accountability of Why and what of such questions!
After the horrors of the Second World War, human rights found expression in the Universal Declaration of Human Rights, 1948, which was accepted, as it was, without a dissentient vote, by all Member States of the United Nations. UDHR is a clear expression of the concept of human rights which evolved from the political and philosophical thinking of the time. The significance of the Universal Declaration of Human Rights, 1948 is to strengthen, on the one hand, the aims and purposes of UN Charter, 1945, and, on the other hand, to establish goals for Member States to work positively towards the promotion and observance of Human Rights to make it the Magna Carta of all mankind. The unambiguous message is that no Nation State shall take singularly or unilateral and/or collectively any action that may be declared or undeclared war like syndrome jeopardizing or paralyzing the life, liberty and dignity of human beings affecting the fraternity amongst Nation States/Member States. Should the naughty and mischievous act of CCV that has confounded and confused the whole mankind, be pardoned?
It seems that the protection of human rights through international action is a revolutionary idea since it recognizes man as the subject of international law superseding the traditional idea that held that the ‘so called rights of man not only do not but cannot enjoy any protection under international law, because that law is concerned solely with the relations between States and cannot confer rights on individuals’. In this perspective, it appears that CCV still lives in traditional idea of international law and cunningly experimented the CCV to avoid future course of collective legal action at international level!
International Covenant on Civil and Political Rights, 1966, International Covenant on Economic, Social, and Cultural Rights, 1966, Two Additional Protocols, and Vienna Declaration (World Conference on Human Rights), 1993 are directives to all civilized Nation-States to live in harmony, common brotherhood and synergetic relationship. These directives are obligations cast upon the member States as to not to take any action that may be war like syndrome by inventing invisible germs or secretive insects which may be more dangerous than chemical, atomic and biological weapons affecting secretively and enigmatically the human as well as humane survival.
Both Covenants on Civil and Political Rights and Economic, Social and Cultural Rights impose on Nation-States an obligation of immediate implementation and, inter alia, not to take any pandemic step(s) that may be virulent disease endemic as well as injurious to humane survival.
Thus, it seems that all persons shall be treated humanely and with mutual respect and an esprit de corps which augur well for the posterity for ages to come for the inherent dignity of the human persons. Therefore, alleged CCV act apparently shall be conceded as departing and going away of positive obligation consequently with negative narrative resulting in inhuman treatment of affected peoples globally across the CCV boundaries.
All human rights are universal, indivisible and interdependent and interrelated, in an ocean within a tear, is the inherent message of Economic, Social and Cultural Rights Covenant. The present syndrome created by the alleged CCV indisputably, indubitably, undeniably, incontrovertibly, irrefutably, and without a straw of doubt is palpable about the denial of all the above delineated civil and political rights, economic, social and cultural rights of all categories of peoples the world over and particularly the plight of inter-state, intra-state and intra-country migrant workers who have been the victims of forced loss of home and hearth and in search of resettlement.
The Vienna World Conference on Human Rights, 1993 has unequivocally and explicitly reaffirmed ‘the solemn commitment of all sovereign Nation States to fulfill their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law’. This declaration is not a mere political as well as lip services philosophy. This declaration is endowed with integrated humane approach to the cause of humanity and her sustenance so that humans flourish. Does the action of alleged CCV degenerate human flourishing and sustenance? Why and how alleged CCV shall be held to be accountable to world community for the international crimes against humanity?
Does the alleged CCV act give rise to the notion or perception of undeclared war or civil strife and the application of the rules of humanitarian law? Especially in the present context international conflicts can and do take place without the declaration of war between two or more Nation-States and the alleged CCV is in that direction when its mighty creature is the secretive germ that is deep within the human race. Does alleged CCV act speak of regressive movement of the society contra to ‘there has hitherto been progressive movement of the societies from status to contract’? An incisive and insightful look at Article 2 of the Geneva Convention of 1949 makes it clear that all the provisions of the Geneva Convention of 1949 apply to all cases of declared war or of any other armed conflict, namely, undeclared war. Thus, situations arouse of alleged CCV lead to strong feeling of disintegration and can lead to appalling atrocities; such situations may lead to animosity affecting peace, amity and amiable relations amongst Nation States. Consequently, the result of such undeclared war may lead to the conclusion that the conflict arouse of CCV is in some respects international, even though the armed forces of two or more countries are not directly involved hors de combat. Does it outrage upon personal dignity and humiliating and degrading treatment? Does CCV act another form of colonialism? This seems to be a convenient narrative which is the heart of the matter: the relationship between human rights and humanitarian law. M. Jean Pictet, an international authority on international human rights and humanitarian law, has vividly and neatly explained that has been acknowledged an authoritative view globally: ‘Humanitarian law comprises two branches: the law of the war and the law human rights’. It, therefore, discerns that humanitarian law is one branch of the law of human rights, and the human rights provide the basis and underlying rationale for humanitarian law.
In the backdrop of the above, it certainly emanates that the International Charters of Human Rights, born out of two despotic, tyrannical, dictatorial, high-handed, repressive and oppressive World Wars, is an authoritative gospel of human rights. This gospel sets forth the rights which are politically and legally universal; they are of international obligations. The conception of these expressions is that every person has legitimate claim upon his society for such enlisted or enumerated or defined rights and entitlements. Securing and promoting these rights is assuring not only the respect for these rights but for the development of stable political systems in the societies that shall be a commitment to constitutional culture and constitutionalism.
Be that as it may, the Covid-19 emanating from the alleged CCV has outraged the conscience of mankind. The alleged CCV is unquestionably an act of undeclared war born out of the autocratic and despotic mind-set. This outrageous, disgraceful, contemptible, and despicable act is an act of man-made disaster, which may have unique impact on human psychology as well as sociology. The man-made disaster has been combated by a unique disaster management approach by following the diagnostic approach of lockdown, quarantine and self-confinement in the absence of any pathological medicine.
What to do against this man-made disaster? A multipronged approach may have to be taken simultaneously universally. Chinese dispensation did not become party to Rome Statute, because it may have had some cunning design for the future to play with the humane law like Et to Brut. Therefore, a strategic approach may have to be followed universally united to question a friend’s loyalty. First, let there be some concrete action against the alleged CCV at the United Nations Organisation. The UNO may take a suo motu initiative by condemning CCV action or some other stringent measures that may bring a ray of hope to smile, smile and keep on smiling till it makes the entire global community to smile. Second, a practical approach should be at United Nations Security Council level resolving the withdrawal of veto power that may be a warning signal to other members of UNSC. Third, the International Commission of Human Rights may have to take a suo motu action against the alleged Perpetrator State, which may develop a progressive step in the directions of confidence building of the deprived victims of this uninvited disastrous calamity of pandemic of international strife. Fourth, the offence of this pandemic is a heinous international crime against humanity, and as such a proprio vigore the doors of International Criminal Tribunal may have to be unlocked for appropriate remedy. Fifth, the jurisdiction of International Court of Justice at Hague may also be another forum appertain to affairs de CCV to invoke human right to fair trial to meet the ends of justice by fair means. Man is born free but everywhere he is in chains. Why? Man is born Brutus, he lives like a Brutus and behaves like a Brutus making the angels to weep.
This makes me to say on Some Reflections on Human Rights between history and politics by Michael Ignatieff: “Human rights language exists to remind us that there are some abuses that are genuinely intolerable, and some excuses for these abuses that are genuinely unbearable”.
To achieve it there ought to be holistic approach with socio-legal-moral maturity with humane creative intellectual activism, namely, “Society is the humane home, Law its discipline and Justice its perennial pursuit”.
Sixth, humanistiques efforts are desirable to create International Tribunals on the lines of Nuremberg Trial and Tokoyo Trial to have befitting approach to the preservance of majestic human rights against the unprecedent undeclared war against humanity.
Seventh, a process of economic blocade and diplomatic blocade may be démarches, as permissible under international law and practice, against the alleged erring alleged nation State that has created CCV.
If the above is ever done, the expected results shall not be mere dream, but shall be regaining of the concept of liberty as freedom to do anything which is not harmful to others. In an epilogue, it may be submitted that there shall arouse the reincarnation of a new Kamayani, which shall reinvogorate new world order which will determine the future of human rights and human values to be humane.
(The author is former Head and Dean Faculty of Law and Founder Director The Law School, University of Jammu; Professor National Law University, Jodhpur)
Prof. Dr. K. L. Bhatia