Public International law also known as “The Law of the Nations” finds its genesis from the Roman Law applicable between the Roman Republic and the tribes and kingdoms of the rest of the world, called “jus gentium”. One of the oldest recorded treaties is the Peace Treaty of Kadesh between Hittities and the Egyptians around 1259 BC. However, the modern International Law as we know today was born in 1648 out of the Peace Treaty of Osnabruck and Munster which put an end to the 30 years of war within the Roman Empire and parts of Europe. The new understanding was based on equal sovereignty of the states on its own territory and equal to one another. Under the model of equal sovereignty, the states were free to enact their own laws and eventually enter into contracts with other states, creating obligations between them. This basic structure of International law has not changed much over the centuries and is still prevalent today. Article 2, Paragraph 1, of the United Nations Charter proclaims that “The Organization is based on the principle of the sovereign equality of all its Members”,while Paragraph 7 protects what is called the “domestic jurisdiction” of States from outside interference.
Under the Peace Treaty of Versailles in 1919, for the first time, an international body was set up for maintaining peace and security between the nations known as “The League of Nations”. However, despite being a symbol of maintaining peace and order between the nations, it failed to prevent the World War II. Nevertheless, this was the first step towards the establishment of the principles of international law as we know today.
International organisations are a very important feature of modern international law. There are a few hundred international organisations governing various aspects amongst states,ranging from river disputes to universal organisations entrusted with crucial political tasks, like the United Nations. The name “United Nations”, coined by United States President Franklin D. Roosevelt, was first used in the Declaration by the United Nations on 1 January 1942, during the Second World War. In 1945, representatives of 50 countries met in San Francisco at the United Nations Conference on International Organization to draw up the United Nations Charter. The Charter was signed on 26 June 1945 by the representatives of the 50 countries. Poland, which was not represented at the Conference, signed it later and became one of the original 51 Member States. The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States and by a majority of the other signatories. According to Article 1 of the UN Charter, the purposes of the Organization are as follows:
“To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
To achieve international co-operation in solving international problems of an economic, social,cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
To be a center for harmonizing the actions of nations in the attainment of these common ends.”
Now the question arises as to how it is possible to have `rule of law’ in a system of sovereign states. The rule of international law originates from the consent and will of the states. The necessity to have in place a mechanism in the form of International law arises from the desire of the states to be able to engage in international relations, having a common set of rules that ensure and protect their rights and obligations. There is no higher authority, as in case of domestic laws, because states are sovereign and equal to one another. In 1927, The Permanent Court of Justice, by laying down the foundation of modern international law, in a case famously known as “The Lotus Case” between France and Turkey, held that:
“International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.
Now the first and foremost restriction imposed by international law upon a State is that — failing the existence of a permissive rule to the contrary — it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.”
Amongst the important sources of international law are international conventions, international customs, general law and unilateral acts recognised by civilized nations and the judicial decisions and teachings of eminent jurists. Another important source of international law is the international treaties entered into by the states amongst each other. The most important of these treaties include the Vienna Convention of 1969,Geneva Convention of 1949 and the Universal declaration of Human rights of 1948. This is,however, subject to the principle of “jus cogens” i.e. a pre-emptory norm generally accepted and recognised by the international community of states (for example, prohibition of slavery, prohibition of racial discrimination, etc.). Thus, the international law being a result of the `will of the states’, the various sources of international law are also a result of processes which are somehow and ultimately controlled by the states themselves. The next step would be the interpretation of the international law, as there can be no application of international rules without interpretation. The general principles of interpretation of international law are provided in Article 31-33 of the 1969 Vienna Convention.
Performance of international obligations is another essential aspect of International law. The International Law Commission has written in its 2001 final report on the Draft Articles on the responsibility of States for internationally wrongful acts as under:
“In some cases precisely defined conduct is expected from the State concerned; in others the obligation only sets a minimum standard above which the State is free to act. Conduct proscribed by an international obligation may involve an act or an omission or a combination of acts and omissions; it may involve the passage of legislation, or specific administrative or other action in a given case, or even a threat of such action, whether or not the threat is carried out, or a final judicial decision. It may require the provision of facilities, or the taking of precautions or the enforcement of a prohibition. That obligation is also an obligation of due diligence, as the International Tribunal for the Law of the Sea has ruled in April 2015. As the ICJ has put it in the case between Bosnia-Herzegovina and Serbia concerning the application of the Convention on the prevention and punishment of the crime of genocide, responsibility for breach of the obligation to prevent genocide “is incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide.”
The use of force is regulated by the rules and principles of International humanitarian law. The Geneva Conventions and their additional protocols deal with, among other topics, prisoners of war, the sick and wounded, war at sea, occupied territories, and the treatment of civilians. In addition, a number of conventions and declarations detail the types of weapons that may and may not be used in warfare.
The States are required to enact domestic legislation in order to comply with their international obligations. A State is free to accept that international law prevails over its own laws, or in some cases, such as in case of conflict, the State may prefer that its own rules prevail. The enforcement of responsibility in case of breach of obligation is most significant in order to ascertain the effectiveness of international law. In the Nicaragua v. United States case, the International Court of Justice observed that-
“The principle that the parties to any dispute, particularly any dispute the continuance of which is likely to endanger the maintenance of international peace and security, should seek a solution by peaceful means […] is a principle that has […] the status of customary law.”
The settlement of disputes in international law can be done by way of political negotiations and treaties, through conciliation, or through the judicial process of the International Court of Justice, the International Criminal Court or other allied organisations. The judicial organ of the United Nations is called the International Court of Justice (ICJ). The ICJ replaced the Permanent Court of Justice founded at the time of the establishment of the League of Nations. The seat of the International Court of Justice is established in The Hague in the Netherlands. The international judicial process depends upon the consent of the parties as there is no compulsory jurisdiction of international law. Arbitration is an old institution of international law and in its modern form, it is usually traced back to the Jay Treaty of 1794, a treaty concluded in London between the young Unites States of America and Great Britain. It is a treaty of amity, commerce and navigation which established mixed commissions of arbitrations to solve certain pending disputes that existed between the two parties. The Permanent Court of Arbitration,also having its seat at The Hague, provides administrative support to arbitration tribunals and also holds international arbitrations. However there is no effective mechanism to implement the decisions of the ICJ, though the same are final and binding on the participating states
On most occasions,international law is subjected to the valid criticism of being ineffective. International law is facing its biggest challenge today in view of the emerging assertive behavior of non-state actors, misplaced nationalism and aggressive economic aspirations of the states. International law has succeeded in matters like punishment for international war crimes and protection of environment in general and European Union in particular which represents the new legal order of International Law. On the other hand, it has struggled in matters of international peace and security, like in Iraq and Syria, and more recently,the global pandemic and standoff between India and China on borders issues. Although obligation to settle the dispute peacefully is a well accepted doctrine of International Law, the absence of farsightedness has resulted in the casual disregard of global interests and giving undue importance to domestic compulsions in the name of security has become a norm. The way the international law is created, implemented and controlled is very complex as there is no democratic system involved, thereby resulting in a greater distance between the law makers and the subjects of law in the international arena. Achieving consensus has become increasingly difficult and complicated amongst member states. The traditionally influential states have failed to reach consensus on various issues, more particularly due to their own notable breaches. Mrs. María Fernanda Espinosa Garcés, President of the 73rd Session of the UN General Assembly stated:
“We are witnessing the rise of nationalist populism and extremist ideologies, as the world becomes more multipolar but also more polarized. We have seen the impact of this trend on hard-won multilateral agreements and institutions: the Paris climate agreement; the global compact on migration; the Human Rights Council, the WTO, arms control instruments – these are just a few examples that I’d like to mention.
We are seeing long-established international laws and multilateral practices – which have delivered so much for the world since 1945 – devalued by geopolitical tensions, unilateralism, and ad hocery.
And we are seeing a growing disconnect between people, governments and institutions. People expect us to keep the promises we have made, through the 2030 Agenda for Sustainable Development, for example. But they are losing faith in our capacity to deliver for them.
Unless we reverse these trends, we risk damaging the values, principles, laws and systems that have been the bedrock of the international community for more than seven decades. And the irony is that these trends are occurring at precisely the moment when we need global cooperation more than ever.”
However, it would be a fallacy to treat International law as fiction, as it has, to a large degree, replaced armed conflict by peaceful negotiation and conciliation as a way of settling international disputes. The effectiveness of international law cannot merely be brushed aside in as much as international law has proven itself to be resilient in the face of global political disputes. The future evolution of international law depends upon the political will of the states towards international policies. States must, in unison,fundamentally recognise and acknowledge their responsibility towards world peace and better global governance, with due respect to the sovereignty of others and work towards the reform and development of international law in accordance with the UN Charter. Contemporary international law is not without its shortcomings, but it still remains exceedingly unique and significant for global harmony.
Credits: UN website, Prof. Pierre d’Argent, Universite catholique de Louvain
(The Author is a practicing advocate in the High Court of Punjab and Haryana at Chandigarh and the views and opinions expressed are personal only)
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We are not the only species surviving over the planet. There are thousands of micro species too, those could not be seen by human eyes but they do play a major role in tuning the life of other species, like us into advancements and even can subject us to immense danger. Bacteria’s, viruses, fungi’s and many more other microorganisms do exist, those though very small in size but are efficient enough to lead other organisms to a biological menace or intimidation. With the advancement of technology there emerged a new branch of studies and research in sciences i.e. Micro-biology. Louis Pasteur, the father of microbiology began working on yeast by 1855. That was the instance when these micro-organisms were used for the prosperity and as an asset for the humans. But with time the intent and adage behind the usage of such organisms, turned from gaining prosperity to losing humanity and installation of dread. Furthermore the use of these pathogens and viruses began in wars, so as to inflict maximum hardships and impairment to the adversaries of theirs. Earlier, there only the Chemical warfare’s and Nuclear warfare’s were recognized but by the time when the use of biological entities begun in the same regard, there got coined a new term at international platform i.e. Biological Warfare.
What Is Biological Warfare?
There is a distinction of miles among Chemical or Nuclear Warfare and the Biological Warfare. Still these all warfare’s are equivalently destructive to human race and other living entities too. After the era of utilizing these micro-organisms for beneficiary concerns, there began the use of such microorganisms for destruction and for making bio-warfare weapons. The scientists in order to come-up with new inventions in the field of microbiology, instead begun with the discovery of more hazardous and menace ensuing micro-entities. Bio-warfare is also recognized as “Germ Warfare”. Thus Bio-warfare refers to the use of biological toxins or agents, for the killing of humans/ animals, in order to inflict maximum damages to the rivals. Moreover in order to curb any such Bio-warfare in near future, it is generally being considered/ recognized as an “Act of War”. Use of any offensive bio-weapon is prohibited under the following laws and treaties:
1) Rule 75, Customary International Humanitarian Law
2) Also by an international treaty i.e. Customary Internal humanitarian law, vol. II.
Above-all the use of any bio-logical weapon especially in case of armed conflict is to be considered as a “War Crime”. If any nation uses bio-weapon in case of an armed conflict, in order to inflict maximum menace and threat among the rivals, that nation is considered to have committed “War Crime”. Also that particular nation is to be held as being in contravention of international laws. With the growth of terrorist groups the threat of use of biological weapons for the means of ensuing terror and menace among mob also arose.
Bio-Warfare Weapons as a Means of Terror
In juxtaposition to Chemical and the Nuclear weapons the Biological weapons are highly immune when concern is of them being detected. The Nuclear weapons could be detected by the radiations of the radioactive material therein used and by such a similar manner the Chemical weapons could also be detected. But the Biological weapons are having a strong shield of immunity that safeguards them from being detected, as both the chemical and nuclear matter used in respective weapons could be seen by naked human eyes, but these micro-organisms and their mutated forms could not be seen and sensed even. Moreover these weapons are economical and easy to access too. The biological weapons are highly cheap as it is of about 0.06%-0.07% of the total cost that’s being used for conventional weapons, thus it gets clearly explicated that these biological weapons are highly accessible to the terrorists too. Moreover generating a virus is the very same process which we accord to in making of vaccines and it’s very easy to generate a new virus by successive lab tests. Also there is a technique in prevalence that’s being used by the scientists of this age in order to deal with such micro-entities i.e. “Clustered, Regularly interspaced Short Palindromic Repeat” (CRISPR). Even scientists have explicated it as to be threat for the humanity as, this technique is very cheap and is easily accessible too. Here in this technique basically a DNA sequence is cut-off and replaced with a new sequence, that codes for particular characteristics. Thus this also leads to emergence of immense terror threat.
Historical Foot Prints of Bio-Warfare
First time the use of Chemical Weapons (in large scale) and Biological Weapons (in short scale) got registered in at the time of World War I [1914-1918]. There occurred massive destruction to both nature and lives due to such a cruel deed of utilizing chemical and biological weapons in the armed conflict. Later on by 1925 there emerged a dire need to lay down some regulations and protocols in order to curb the use of both Chemical and Biological weapons. Thus in 1925 itself Geneva Protocols were laid down and thereby prohibited the use of any Chemical or Bio-logical weapon. But it didn’t put bar on the research and production of these agents too, which restricted the use of these weapons but countries kept on researching and producing these weapons. Between 1930’s and 1940’s Japan was indulged in the experiments of its bio-logical weapons. It kept on producing bio-weapons and tested them once the production got completed, thereby used one of its Biological Weapon over China. Furthermore got entrenched The Biological Weapons Convention by 1972 that prohibited the use, research, development and production of Biological Weapons. Still after establishing several conventions there took place outbreak of biological weapon agents numerous times, off which the most cataclysmic was the outbreak of “Anthrax” a biological weapon agent in Soviet Union. Till date Anthrax is the most deadly and pernicious biological agent used for the purpose of biological weapon. Recently there has come-up a virus before the whole of the world, as a challenge to humanity, nature and lives. The virus is being titled as “Novel Corona Virus” or “COVID-19”. This virus has spread its arms all over the world and has taken numerous peoples in it infectious ambit. The outbreak of this virus begun from Wuhan, place in China. The World Health Organization has even declared this as a Pandemic, moreover due to this the world economy has shown a prodigious debacle, and is at its least figure of the last three years. Now the issue of concern is whether the outbreak of COVID-19 can’t be due to a mishap while working over secret biological weapon project by China.
Is COVID-19 a Bio-Weapon?
There have emerged various theories regarding the COVID-19 including the statements of biological warfare analysts and some literary sketches also. Some of these consider it to be fictional occurrence that was predicted earlier itself by the literary authors, whereas some consider it to be an occurrence akin to the secret biological weapon project of China. Herein would be discussing some of the major theories as follows;
1) Wuhan Institute of Virology:
China has several biological labs and research centers of its, but at the same time has some secret labs too those work upon the development of biological weapons. In regard to same an Israeli biological Warfare analyst, has claimed that animal borne Corona Virus may have its origination from the Chinese labs, also made a statement that the Corona virus could be a result of China’s Covert Biological Weapons Program. Danny Shoham a former Israeli Military Intelligence officer has studied the Chinese Biological Warfare and thereby reported to The Washington Times that
“Certain Laboratories in the institute have probably been engaged, in terms of research and development, in Chinese (Biological Weapon), at least collaterally, yet not as a principle facility of the Chinese Bio-Warfare alignment.”
Thus there are for sure chances of it being a result of mishap at the Wuhan Institute of Virology, while working over a biological warfare project.
2) Literary records:
There has been a literary paragraph that has been trolling down the pages of every social media handle. It is a literary text written in the same concern that also discussed regarding the very same plot through which we are going.
The literary text is nothing but a narration of one mother that how his son who went for studying to Wuhan, got affected by a highly infectious virus i.e. Wuhan-400. It was also predicted in this literary text that this would be the most infectious viruses of all those came into scenario till now. Thus this literary context also shows resemblance with the current scenario, but obviously can’t aid is as to how and due to which reason the outbreak of COVID-19 has occurred.
3) Claims of American President, Sir Donald Trump and Mike Pompeo:
When the outbreak of COVID-19 was just on its emergence the US President Sir. Donald Trump claimed that it’s a result of mishap at the biological warfare project of China, especially from its Institute of Virology in Wuhan. Sir. Donald Trump and Pampoe explicated that China has been secretly engaged in the Bio-Warfare projects, and the outbreak of COVID-19 could be the biological agent of it bio-weapon.
4) Carnage of Chinese economic espionage:
Federal Bureau of Investigation (FBI) is the domestic intelligence and security service of the United States and its principle federal; law enforcement agency. Recently FBI has arrested a professor of Harvard University, US for him being lying on his participation in Chinese research program, a Chinese national working as scientific-researcher at Boston University for failing to be under J1 visa application and having connected with people’s liberation army and one more Chinese national who used to smuggle files of biological materials from US to China. The Federal Bureau of Investigation (FBI) contends the following in regard to arrest of everyone above, as follows:
(a) Charles, Professor Harvard University, US – FBI arrested Charles for making false statements in regard to his involvement in China’s plan and affiliation to Wuhan’s University of Technology. By investigation FBI found that Charles signed a contract with Chinese university for aiding with his research experience in their research program. For this Charles got paid $50,000/month and $10,050 as living expenses. Moreover got an amount more than $1.5 million for setting up a research lab in Chinese school, especially to research on Nano-technology.
(b) Mr.Yeh, Chinese National, Scientific Researcher, Boston University, US – FBI took Yeh, a Chinese national under their suspects when recently he lied upon his J1 visa application and thereby making false statements to Custom services there. He was working as scientific researcher there in Boston University, US. FBI found him lying and not maintaining J1 visa, involved in conspiracies and as an unregistered agent of People’s Republic of China. Yeh accessed military websites and numerous research documents, which were thereby sent by him to China.
(c) A Chinese National, working as researcher – He is a Chinese National sponsored by Harvard University, US and was involved in research activities. He used to smuggle files of biological material and other research materials stolen from labs of biological sciences. He before boarding to his flight was caught by Custom’s Officers with 21 Biological Materials files, to which earlier he made statement that he had no biological file with him.
The research lab set-up, research contracts, smuggling of files of biological material from US to China and existence of an unregistered agent of People’s Republic of China as a scientific researcher in Boston University of
US are not the matter of coincidence and it seems to be a well-planned long term campaign run by China, in order to affiliate all researchers and researches of US to itself and make its own gain realize. According to FBI Officials the major target of this campaign of China are the research universities and labs of US.
5) Speculations from Chinese Scientists:
The Chinese scientists believe that this virus i.e. COVID-19 could have evolved from the lab/ Facility not too far from the Wuhan’s market. They too expressed that COVID-19 could have been originated from WHCDC or Wuhan Institute of Virology (i.e. 280 meters far from Wuhan’s market). The Chinese scientists believe that this virus could have leaked at time when it was undergoing testing procedure. The Chinese scientists have also stated that COVID-19 outbreak could be the accidental result of biological weapons research. Above-all a renowned Chinese professor is missing after his condemning the President of China Xi Jinping, on his failure to control the spread of virus at early stage.
6) Suit filed at United States District Court, seeking relief of $20 trillion US dollar:
Dated 17th March, 2020 a suit has been filed by Lary Kalyman, a natural person and others, with People’s Republic of China, People’s Liberation Army and others as defendants. The crux of what the suit revolves around and what are the contentions made, is as follow:
(a) Factual matrix: China acceded, ratified and joined Biological weapons Conventions on 15th November, 1984, also did the same in case of “Geneva Weapons Convention, 17th June, 1925”. COVID-19 was actually developed by China under its secret Bio-Weapon Program, for catastrophic and effective effects on its rival/ enemy countries. Many reputed peoples, organizations and experts have declared that COVID-19 is the result of an accident at Chinese Biological Weapons Facility. Dr. Li Wenaling of Wuhan violated the Chinese censorship and alarmed the outside world about the virus. Thereafter he was summoned, reprimanded and government there silenced him. Thereby on 6th February, 2020 not coincidently he died of the virus he was fighting against. Studies of Princenton University stated that COVID-19 stays alive in air for 3 hours and on inanimate substance for about 3 days.
(b) Cause of Action: The causes behind this action are enlisted in crux as follows:-
(c) Reliefs Claimed: The following are the reliefs claimed by the plaintiffs;
This was all about the suit initiated at United States District Court. There are for sure some high chances that as and when the trial begins or proceeds further some new knots or un-resolved degrees over this issue would get sorted.
These were some classified theories running around the outbreak of COVID-19. But there has come up no certain evidence or proof that establishes China’s Bio-logical Warfare intents behind the same. Rather after this an inclusion could be made to the international laws that there should be established ban on virological research’s and development of bio-warfare weapons on secret terms also. For this a committee could be set-up that could be given discrete jurisdiction to seizure and search of any lab or biological institutes in case have a black and white proof of development of Biological warfare weapon. The mystery of actual culprit behind such an outbreak and the theories behind it would also get sorted with advent of time, but the major concern of now should be to develop vaccine of this virus as early as possible. The whole of the international network and linkage has broken, and the economy of International markets is at its lowest figures of the last three years. Strict initiatives should be taken by authorities of every country to prevent the spread of the virus ahead. Economy does matter only when the economy raisers are safe and sound.
Himanshu Raj, Advocate
(Author is a lawyer in Punjab and Haryana High Court & has also been awarded “National Law Day Award by The President of India”)
The President of India”)
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