By Prof Upendra Baxi

The world is scarce of happy developments, and replete with evil and sinister situations. We know this full well even as we mourn the end of the first year of the Russian war against Ukraine. In this tragic backdrop, the recent conclusion of the Biodiversity Beyond National Jurisdiction Agreement Treaty of the High Seas (BBNJ) or High Seas Treaty, on March 5, 2023, is good news.

It is amazing but true that more than an estimated 60% of oceans have long been ignored in environmental regulations and only around 1% of the high seas are currently subject to conservation measures. BBNJ is an extraordinary normative achievement because of its multi-level international governance framework for marine biodiversity, amidst deep fissures marking the positions of developed countries pitted against developing and least developed countries.

India has been a valuable ally of BBNJ. As late as February 22, 2023, India urged the “UN Member Nations to stay dedicated to the conservation and preservation of the oceans and its biodiversity” and “supporting sustainable economic development and the well-being of coastal people under the United Nation’s Convention on the Law of Sea (UNCLOS)”.

The “ship has reached the shore” was the gleeful observation of the Conference chairwoman Rena Lee (Singapore) who announced at the UN headquarters in New York, this “unique” treaty marking an end of nearly two decades old rarely heard negotiations. In Singapore, she said: “We like to go on learning journeys, and this has been the learning journey of a lifetime. This action is a victory for multilateralism and for global efforts to counter the destructive trends facing ocean health, now and for generations to come.”

UN Secretary-General António Guterres has acclaimed this achievement as a “victory for multilateralism and for global efforts to counter the destructive trends facing ocean health, now and for generations to come”. BBNJ has also been called the “once-in-a-generation opportunity to protect the oceans—a major win for biodiversity”. It also marks “a victory for the second global commons”—the first having been attained for global atmosphere by the Paris Climate Change Agreement in 2015. The Treaty aims to protect the high seas, beginning at a maximum of 200 nautical miles (370 km), away from the coastline and which are not under the jurisdiction of any state.

As the European Commissioner for the Environment, Oceans and Fisheries, Virginius Sinkevičius, said the agreement was a “historic moment for the ocean” and a “crucial step forward” for us and “generations to come”. Equally valid was the further assessment suggesting that this “strengthened multilateral cooperation” will constitute a “major asset” to implement the “goal for 30% ocean protection” and the fulfillment of four goals and 23 action-oriented targets finalised in Kunming-Montreal Global Biodiversity Framework (December 22, 2022).

The text of BBNJ is not yet fully in the public domain, but we fully know that it will include binding and voluntary measures that aim to better implement UNCLOS especially through “better cooperation and coordination of various stakeholders”. It also has the goal of ensuring “compatibility with existing roles and responsibilities of the various stakeholders” and to “advance scientific research, globally”.

Further, an important aspect of the Treaty, particularly for developing countries, is that it addresses “existing inequalities in sharing the benefits (including access) accrued from the organisms of areas beyond national jurisdiction”, as well as the results of basic and applied research, and monetary benefit-sharing associated with commercialisation from utilizing MGRs (marine genetic resources).

The Treaty also contemplates an authority to manage the conservation of ocean life and MGRs on the high seas and sustainable framework of objectives and procedures for conducting environmental impact assessments (EIA) for commercial activities in the oceans. Further, it aspires to “knit” together different regional treaties, for example, in protecting marine species such as dolphins, whales, sea turtles and many fish that “make long annual migrations, crossing national borders and the high seas”. 

Such protection will assist not merely species conservation but also coastal biodiversity and economies, thus marking an important step forward for the livelihoods of coastal communities. Moreover, a legal framework for establishing vast marine protected areas (MPAs) against the loss of wildlife and sharing genetic resources of the high seas will mature over a period of time. Finally, a Conference of the Parties (COP) that meets periodically will enable, it is hoped, accountability on all issues of governance of oceanic biodiversity.

The high seas (exposed for long to exploitation and pollution due to commercial fishing, mining and pollution from chemicals and plastics) are at last assured of a new dawn of peace and prosperity through multi-level international regulation and oversight. Already, global powers have pledged billions of euros as initial funding.¹

We may take only two, out of many, sticking points deliberated in the prolonged agreement—the issue of MGRs and environmental impact assessments (EIAs). Technology barriers in bio-prospecting in “remote and mysterious” typically unregulated areas of the high seas are well-known and will continue confronting the developing and least developed countries—a fact evidenced by ten developed countries (certain EU countries, Japan, Norway, Switzerland and the US) accounting for 90% of MGR patents in the high seas and the deep seabed (about  2/3 of the oceans). BBNJ now contains some form of CHH (common heritage of humankind) concept, providing that at least the “defined territorial areas and elements of humanity’s common heritage (cultural and natural) should be held in trust for future generations and be protected from exploitation by individual nation state”.² Developing the CHH principle will yield international institutions to manage MGRs activities and the harvest of a just regime benefitting all species and humankind. How may this principle foster new ways of MRG regulation from minerals to marine life-forms remains yet in the womb of the future.

The BBNJ negotiation has revealed some sharp disagreements on the public nature and scope of EIAs and review by the international community. Although apparently resolved now by the BBNJ, questions will long persist on the internationalisation of EIA principles; for example, the thresholds that “will waver according to measure—whether by an activity that may cause substantial pollution of or significant and harmful changes” (UNCLOS, Art. 206), or whether it is likely to “have more than a minor or transitory effect”. Further, how may one determine the “public”: who may wish to speak, and be heard, for example, on “behalf of nature”?

One may only hope that planetary citizens will remain more interested now in oceanic biodiversity and maintain a constant and true vigil on treaty cooperation, implementation and development. As we learn from the Paris Framework Agreement, the battle is won with the enunciation of core norms, but the war of conflicting interpretation of norms, and overdetailed regimes of rules, will continue for quite a while. Globally active citizens may well read various articles of the Treaty as a summoning series of invitations for socially responsible leadership rather than constituting formidable mountains of fait accompli. 

—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer

Footnotes

¹ The European Union promised €40 million euros to facilitate the ratification of the treaty and to its implementation. In total, “341 new commitments” worth nearly €18 billion were made at the conference, including nearly €5 billion from the United States.

² Ríán Derrig, Memorandum on the Common Heritage of Mankind and Biodiversity Beyond National Jurisdiction (Part I),  https://opiniojuris.org/2023/02/24/memorandum-on-the-common-heritage-of-mankind-and-biodiversity-beyond-national-jurisdiction-part-i/

In a far-reaching judgment, the J&K High Court has taken cognisance of domestic violence being perpetrated on women now and issued a slew of directions to authorities in order to give relief to them

By Prof Upendra Baxi

J&K Chief Justice Gita Mittal and Justice Rajnesh Oswal have rendered a signal  service to the motto “women’s rights are human rights” by issuing a slew of directions during the Covid-19 infestation to keep Indian women safe and secure from domestic violence. This growing everyday menace now stands aggravated during this sinister pandemic. There is so much governments have to do that not all vulnerable individuals and groups receive equal attention and priority. In these circumstances, courts have an important role to play in reiterating the fundamental rights declared by the Constitution and core human rights established by international law, which is the duty of all nation-states and people to fulfil. These may not, even in times of Covid-19, be judicially ignored or suspended.

The Court issued a large number of directions to authorities under the Protection of Women from Domestic Violence Act, 2005 (PWDVA), particularly referring to the duty cast upon the government under Section 11(a) of the enactment to “take all measures to give wide publicity to the provisions of the law through public media including the electronic and the print media for protection of rights of women who are victims of violence of any kind occurring within the family”. This accentuation to fulfil the duties of legal literacy is especially important during the confrontation with Covid, as emphasised by the first and the last direction.

The second direction is equally critical as it urges creation of a “dedicated funding to address issues of violence against women and girls” as part of the Covid-19 response by the Union Territories of Jammu and Kashmir and Ladakh and that it respond to some urgent  requirements overlooked in state programmes.

Two additional sets of directions relate to (1) access to call-in and counselling facilities and (2) provision for “safe places” for women. The former relates to: “Increased availability of call-in services to facilitate discreet reporting of abuse”; “increased tele/online legal and counselling service for women and girls” and designated “informal safe spaces for women, say grocery stores and pharmacies, where they can report domestic violence/abuse without alerting the perpetrators”.

Canada and Australia have already integrated the needs, and the rights, of women in anti-Covid plans and the Court notes that “Prime Minister Justin Trudeau of Canada has set aside tens of millions of dollars to support women’s NGOs, shelters and sexual assault centres across Canada”.

In addition, the judgment said that there should be “[I]mmediate designation of safe spaces (say for instance empty hotels/education institutions etc) as shelters for women who are compelled to leave their domestic situation. These shelters must be treated as accessible shelters”. Secure access and shelters, besides protecting dignitarain interests of women and girls, have the additional advantage of amelioration of the “trust deficit” between adversely affected women (and indeed all women) and the state. Many nations have acted with alacrity and the Court, for example, notes that “France’s government also recently announced that it had reserved 20,000 hotel rooms for victims of domestic violence”.

Sociologist Parul Bhandari has written: “In India, the lockdown has imposed a situation where the victim has to cohabit with her abuser for days in end. Uttar Pradesh’s police has already pre-empted this situation and has launched a special hotline to deal with the pressing issue of domestic violence especially during the lockdown period”. (Scroll.in., April 20, 2020).

Educationally, the Court cites the statement of Antonio Guterres, the Secretary General of the United Nations, saying that “nearly 60% of women around the world working in the informal economy, earning less, saving less are at greater risk of falling into poverty because of the COVID-19 pandemic”. Besides as “markets fall and businesses close, millions of women’s jobs have disappeared”. Guterres further observes that “the women are losing paid employment, women’s unpaid care work has enhanced exponentially, as a result of school closures and the increased needs of elder people. These currents have been observed to combine as never before to defeat women’s rights and deny women’s opportunities”.

The Court’s performance, by no stretch of imagination, can be called judicial overreach! It is merely sculpting interim reliefs to redress a gender-challenged scheme of the anti-Covid regime of lockouts and other measures. What is true of J&K and Ladakh is true of most of India and not a single judicial direction is unreasoned and out of sync with comparative constitutional and international law obligations. It is much hoped that this judgment becomes an aspect of the national anti-Covid programme.

Civil society groups have been urging additional measures. For example, in an open letter to Delhi CM Arvind Kejriwal, lawyer Vrinda Grover and other signatories (https://fightcovidnotpeople.in/2020/04/04/ensure-womens-rights-during-the-lockdown-an-open-letter-to-delhi-cm-kejriwal/ April 4, 12020) urged a whole shift of engendering the fight against the pandemic. It pleaded a review of “[L]ockdown as a public health measure….” This must develop into ways to discourage “Non-Secular, Racist, Sexist and Casteist Messaging”, uphold “substantive equality for women” and transpersons and ensure respect for reproductive rights. Above all, “lockdown outside the framework of health rights, women’s rights and human’s rights has created a mammoth humanitarian crisis that must not be treated only with a framework of policing and punishment”. This statement must be read and acted upon, by all-anti-Covid policy makers and workers.

Similarly, it has been urged that the state deliver “reproductive health services, contraceptives, menstrual health supplies and maternal health care”, provide “90 days of wages to all pregnant from 3rd trimester and lactating women with infants aged less than 6 months”, facilitate “women’s continued participation in paid work”, organise “necessary support” for the single, disabled, infirm, and “elderly” women, ask panchayat organisations “for organizing regular water supply to every household in order to avoid women and girls congregating at the village water source for bathing, washing and fetching drinking water” and show greater regard for the needs and rights of transgender peoples. (Counterview.Org., April 6, 2020).

These suggestions need to be integrated and implemented in the framework of a national policy, despite the rather perplexing disregard by the High Court of the sage counsel of civil society groups so earnestly proffered.

A further feature of misogynist landscape is the status of women in live-in relationships and the much-delayed definition of it. Section 2(f) of PWDVA defines a relationship as “between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”.

However, the phrase “in the nature of marriage” is not crystal-clear and the Supreme Court (per Justices KS Radhakrishnan and Pinaki Chandra Ghose in Indra Sarma, 2013) has urged Parliament to clarify the law further to settle the question as existing law only protects the lawful rights of the spouse and legitimate children.

Parliament has still to act as Covid-19 threatens us all with its toxic sway. A suitable provision ought to be made in the national anti-Covid policy at least for women in a live-in relation who are victims of such violence. It is high time to engender the law so that we may endanger the male bias in it.

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer