Affixing China’s Liability for COVID-19 spread


Authors: Aaditya Vikram Sharma and Prakash
Sharma*

Various news outlets have reported that Pakistan is
moving patients from Punjab to Pakistan- administered Kashmir. This article
analyses the soundness of this decision vis-
à -vis
international law.

Recently,
it has come to light that the Government of the Islamic Republic of Pakistan is
moving coronavirus positive
patients
from
the province of Punjab to Pakistan-administered Kashmir. This territory of
Kashmir controlled by Pakistan is administered through two regions comprising
of Gilgit-Baltistan and the so-called Azad Kashmir.

The
patients of COVID-19 are being moved to “Special Quarantine Centers” that are
coming up in Mirpur and other cities in
the region.
The
region comprises of territories that are the two most marginalized areas under
Pakistani occupation. In fact, Kashmir, as a whole, is considered a disputed territory.

In this
article, we try to decipher the applicable international law concerning the
State-mandated movement of COVID-19 infected people in Pakistan to
Pakistan-administered Kashmir. We draw out the relevant international treaties
and gauge the response of the government accordingly to find out the legitimacy
of these acts.

Status of Kashmir

Kashmir is considered
a disputed territory. The erstwhile Kingdom of Kashmir is controlled by three
countries- China, India and Pakistan. India and Pakistan claim the whole of
Kashmir. The history is complex and beyond the purview of this article.

It is pertinent
to note that Pakistan’s stance has been, at least constitutionally, to respect the wishes of the Kashmiri people. To that
end, the semi-autonomous State of Azad Kashmir was created. But, its autonomy
is doubtful—the AJ&K Interim Constitution,
1974
under Article
7(3)states that  “[N]o
person or political party in Azad Jammu and Kashmir shall be permitted to
propagate against, or take part in activities prejudicial or detrimental to,
the ideology of the State’s accession to Pakistan.” The Government in Islamabad
exercises ultimate control on its administered regions.

On the other hand, India administered its administered
region of Jammu and Kashmir by initially creating the State of Jammu and
Kashmir. On 5 August2019, the Indian Federal Government removed
the special status
and created the two Union
Territories of Jammu and Kashmir and Ladakh. The move was opposed by Pakistan which
even threatened to go to the ICJ
.

The Corona Virus outbreak in Pakistan

Coronaviruses are a large family of viruses which may cause illness in animals or
humans. In humans, several coronaviruses are known to cause respiratory
infections ranging from the common cold to more severe diseases such as Middle
East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS).
The most recently discovered coronavirus causes coronavirus disease COVID-19.

This new virus and disease were unknown before the
outbreak began in Wuhan, China, in December 2019. It is especially dangerous
because its
infectability is perilously high
—people can easily catch COVID-19 from others who
have the virus. The disease, which can be fatal, spreads from person to person
through small droplets from the nose or mouth when a person with COVID-19
coughs or exhales. These droplets land on objects and surfaces around the
person. Other people then catch COVID-19 by touching these objects or surfaces,
then touching their eyes, nose or mouth. People can also catch COVID-19 if they
breathe in droplets from a person with COVID-19 who coughs out or exhales
droplets. This is why it is essential to stay more than 1 meter (3 feet) away
from a person who is sick. Pakistan detected its first case on
26
February 2020.
At the time of writing, as per the WHO
database
,
there have been 1526 total cases, out of which 25 have recovered and 12 have
died. However, instead of restricting movement, the Government of Pakistan has
decided to move patients from the worst affected province to a least affected and
internationally disputed and underdeveloped territory. The next part analyses
the soundness of this decision under International Law.

International Law

As
Pakistan-administered-Kashmir is a disputed territory, it is pertinent to see
what international laws apply. De-facto control of the region is with Pakistan.
So, our focus shall be on the treaties that apply to it. Under the international
legal framework surrounding epidemics and pandemics, the primary documents that
are available are the International
Health Regulations (IHR).
These were adopted by the World Health Assembly of the World Health
Organisation in 2005 and entered into force in 2007. These regulations are applicable
to196 countries, including Pakistan. One of the main principles of the IHR is
that their implementation would be with “With full respect for the dignity, human rights and fundamental freedom of persons” (emphasis supplied).So, Pakistan is required to
respect the human rights of the people in its administered territories.

The primary
human right which applies here is the Right to Health. According to the Office of the High Commissioner for Human Rights, the
Right
to Health is considered an inclusive right
and includes the right to prevention,
treatment and control of diseases. This is enunciated by Human Rights instruments
such as the Universal Declaration of Human Rights, 1948 (UDHR) and the
International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR). Pakistan
is a party to both the Covenants.  The
UDHR, under Article 25, states that “Everyone has the right to a standard of
living adequate for the health and well-being of himself and of his family..”Further,
explicit provisions have been made under Article 12(1) of the ICESCR regarding the
health of peoples. It reads as follows-

“The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of the highest
attainable standard of physical and mental health.”

In fact, Article 12(2)(c) goes further and states that-

“2. The steps to be taken by the States Parties to the present Covenant
to achieve the full realization of this right shall include those necessary
for:

***

 (c) The prevention, treatment and control of epidemic, endemic,
occupational and other diseases;” (emphasis
supplied)

***

By moving infected patients into an internationally
disputed and so-called autonomous territory, Pakistan is violating the rights
guaranteed to these peoples. According to the WHO, the best
methods
to control the outbreak include isolation and social
distancing. Most of the countries globally have gone
into lockdown
and restricted the movement of their populations.
However, the Government of Pakistan, citing economic reasons, has been
reluctant to declare a lockdown and in its wisdom, has decided to migrate
highly infectious patients to a region with a relatively unscathed population.

Understandably,
the locals are not in support of this move by the Government of Pakistan. So,
the policy of the government goes against its stated goal to respect the wishes
of the Kashmiri people. This migration of patients is being done even when the
region has registered one of the lowest cases in Pakistan. At the time of
writing, there are only 2 cases in the so-called Azad Kashmir province. Punjab
has the highest number of cases, i.e, 558. The health-care facilities are also
inadequate in Pakistan- administered Kashmir. Logic would, therefore, dictate
making quarantine centres and creating better medical infrastructure in the
better equipped Punjab province. Instead, quarantine centresare being established
in the relatively underdeveloped Pakistan-administered-Kashmir. This move is
quite baffling and contrary to international law.

Conclusion

Pakistan’s
actions directly contradict its international stance and international law. In
fact, its hypocrisy has taken a new tone when the Government of India offered
aid during the SAARC conference and Pakistan raised the ‘Kashmir issue’. After raising the issue, it has
started moving COVID-19 affected peoples from its Punjab province to its
administered region of Kashmir. It should refrain from such acts and, as a
matter of fact, treat them with better healthcare facilities that already exist
in Punjab.

Both Authors are writing in
their personal capacity. All views are personal.

*Prakash
Sharma is an Assistant Professor at the Vivekananda Institute of Professional
Studies, New Delhi, India.



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