Human Rights, India

Setting up a Commission of Inquiry for India

Introduction

India has seen violence break out against citizens exercising their right to protest since August. These protests were initially against the amendment to Article 370 of the Constitution of India, and subsequently against the Citizenship (Amendment) Act, the National Register of Citizens and the National Population Register. On this blog, we have previously explored (here, and here) what litigation strategies and issues arise should either of these actions be taken to the International Court of Justice. This post, however, adopts a less confrontational method, examining the argument that the United Nations should set up a Commission of Inquiry in India. It will then lay out a proposal for this hypothetical Commission’s mandate, and conclude by addressing potential hurdles this proposal might face.

The Purpose: Investigate and Recommend

United Nations-mandated commissions of inquiry and fact-finding missions are set up in response to situations of serious violations of international humanitarian law and international human rights law, to promote accountability for such violations and counter impunity. These international investigative bodies have been established by the Security Council, the General Assembly, the Human Rights Council, its predecessor, the Commission on Human Rights, the Secretary-General and the High Commissioner for Human Rights. In Asia, these fact-finding missions have been established in recent years in North Korea, and in Sri Lanka. Their contribution in Myanmar is particularly noteworthy, since the International Court of Justice relied on the Mission’s findings in reaching a decision on provisional measures in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide

The purpose of these Commissions is to act as temporary bodies of a non-judicial nature, and investigate allegations of violations of international human rights, international humanitarian law or international criminal law. At the end of the Commission’s mandate, the Commission submits a final report to the mandating authority. This report outlines all of the Commission’s findings and its recommendations for corrective action based on factual and legal findings. These recommendations can take several forms, ranging from seeking prosecution and accountability, reparations, institutional reforms and calling for action from United Nations entities. While the Commission’s functioning ends with the submission of the final report, the “success” of the Commission depends on the follow-up and implementation of the Commission’s recommendations. In any event,  Commissions are noted for initiating a conversation a process of accountability.

There is no standard operating procedure for these Commissions. Instead, their mandate and scope is heavily dependent on the circumstances in which they are constituted. They can have sweeping, general mandates, or mandates which are specific, identifying a location or an event that the Commission is to investigate.

The Need: Immediate and Urgent

India needs a Commission of Inquiry to redress the mechanisms for accountability in the country.

Since August, Indians have been exercising their right to peaceful protests across various cities in the country, a right enshrined and protected within the Constitution of India and international instruments. The site of several protests have, however, turned violent rapidly. There are, admittedly, some news outlets reporting that protestors committing uninstigated acts of violence. However, there has been an alarming rise in the number of protest sites and other gatherings that have turned violent upon incitement by Governmental officials, or upon violence being committed by police officials.

The violence being perpetrated has been targeted toward the Muslim community in India, burning their homes, vehicles, and religious sites. While citizens carry out these acts of violence, Governmental officials remain silent, or instigate them further through hate speech.

It is not exclusively the Executive or the Legislature that is complicit. Where citizens have sought relief from courts in the country, few courts have offered the same. On the contrary, courts help to further Government inaction. Judicial officers passing orders that are viewed to be “anti-Government” or “anti-ruling party” are transferred away from positions where they can make these decisions to affect change. The State machinery is fed and supported by media outlets who report unverified, biased versions of events, promoting a centrist/both sides have done harm narrative on issues at hand which fail to hold the Government accountable. This is dangerous as it fails to address the disproportionality of the violations.

All of this remains in the background of the amendment of Article 370 of the Constitution of India and the Citizenship (Amendment) Act. The amendment of Article 370 brought with it the longest internet shutdown in the country, a shutdown that continues to this date. The Citizenship (Amendment) Act, as we’ve argued before, represents discriminatory state action. Both of these violate international human rights law.

The Ideal Mandate: Broad and Sweeping

A broad, sweeping mandate is necessary.

Specific mandates often take the following form [adopted from the independent Special Commission of Inquiry for Timor-Leste (2006)]:

“to establish the facts and circumstances relevant to incidents that took place on 28 and 29 April and 23, 24 and 25 May and related events or issues that contributed to the crisis, clarify responsibility for those events and recommend measures of accountability for crimes and serious violations of human rights allegedly committed during the mandated period.”

The language here points to there being a mandated period. Similarly, other mandates point to the existence of a localized area in which violations have taken place. This is not the case in India. While there are violations of human rights taking place today, at this time, they are not localized to a time period or a given area in the nation.

A broader mandate was adopted for the creation of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea (2013):

“… the commission of inquiry will investigate the systematic, widespread and grave violations of human rights in the Democratic People’s Republic of Korea … including the violation of the right to food, the violations associated with prison camps, torture and inhuman treatment, arbitrary detention, discrimination, violations of freedom of expression, violations of the right to life, violations to freedom of movement, and enforced disappearances, including in the form of abductions of nationals of other States, with a view to ensuring full accountability, in particular where these violations may amount to crimes against humanity”

This broader mandate represents language that can be applied in the creation of a Commission of Inquiry for India. Linguistics apart, it is more useful to recognize why the broader mandate is necessary instead of a specific mandate. India’s track record on international human rights has been dismal – particularly, in ensuring that the Government is held accountable – since the 1970’s. The country has been ravaged by communal violence, with the State’s complicity, on several occasions in the past. Laws under consideration today, and being enacted in Parliament subtract from some human rights rather than furthering their protection.

This is evidence that the State machinery is in need of reform, and a fact-finding mission will help initiate a conversation on that change.

The Barrier: India’s Consent

India has a history of refusing and denying Commissions on Inquiry and United Nations’ offers of intervention in what it considers to be “sovereign” matters. Most recently, it rejected the United Nations High Commissioner for Human Rights’ report on Kashmir, and the call for the establishment of a Commission of Inquiry in that respect. For the Commissions of Inquiry to effectively carry out their mandate, the consent and co-operation of the “receiving” State is a necessary prerequisite. India’s hesitance to provide that consent is likely to be the biggest hurdle.

In rejecting the Kashmir report, it questioned the intent of the United Nations in compiling a selection of largely unverified information. The first response to this is that a Commission of Inquiry offers the opportunity for an investigation that will verify information on-ground. This will prevent the circulation of unverified information at large. Second, though, States (such as Democratic People’s Republic of Korea), which do not cooperate with requests for Commission of Inquiry are often deemed to be States guilty of human rights violations – often inviting further sanction from the international community. The present ruling party does believe that there is no Government complicity in the human rights violations taking place. In Court, it has been able to run this narrative through whataboutery and the transfer of judges. Cooperating with a Commission of Inquiry provides an opportunity to attest to that claim.

The worst-case circumstance here is that India refuses to consent to a Commission of Inquiry that includes Kashmir in its mandate, for grounds of internal and national security, a sovereign claim it has the right to make.

That circumstance is undesirable. Yet, I would argue that it is still worthwhile for a Commission of Inquiry to be established to investigate the intertwining of peaceful protests, communal violence, Government inaction, and how these perpetrate human rights abuses. Some initiation of a process to improve accountability will be welcome.

Conclusion

The creation of Commissions of Inquiry requires international political will and support. Even where the Secretary-General orders for the creation of a Commission, this takes place with the backing of States. He does so with the recognition that there is a desire to investigate and hold individuals and Governments responsible for violations of human rights law. This political will eventually translates to follow-up action being taken by United Nations agencies and States independently when the mandate of the Commission comes to an end. Action by the United Nations Security Council in particular, is a coercive measure.

The Organization of Islamic Cooperation issued a statement through twitter (rejected by India) seeking for those inciting anti-Muslim violence in India to be held accountable, and various bodies in Europe and the United States of America have pledged support to this in the past two weeks. The political will for greater accountability is building, slowly, but certainly, and it would be interesting to see if the United Nations uses an accessible instrument to help rebuild a culture of accoutnability.

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Child Rights, Human Rights, India

Soumitra Kumar Nahar v. Parul Nahar: Parental Responsibilities and the Convention on the Rights of the Child

Introduction

In Soumitra Kumar Nahar v. Parul Nahar, the Supreme Court of India (“the Court”) observed that parental responsibility does not end even when there is a breakdown of the marriage. This observation was set in the context of a matrimonial dispute pertaining to the custody of the children – with the Court brokering an interim agreement to be followed by the parties.

While that observation is a fair one, this post will lay out reasons why the same observation should have been supported by international law on the subject. There is a recent, growing trend of domestic courts participating as agents in the development of international norms. This case represented an opportunity for the Supreme Court of India to do just that, an opportunity it has missed taking.

The Relevance of the Convention on the Rights of the Child

The Court’s observation on parental responsibilities is a reaffirmation of principles it has reiterated on numerous occasions, such as in ABC v. State (NCT of Delhi). It arrives at this observation by placing the children at the center of the dispute, stating that the children are victims in all custody battles, and any and all decisions ought to be taken in the best interests of the child. Hereinafter, these are referenced as the “core principles” of the decision.

There is no new law here. However, I argue that the Court could, and should have supported this observation by making reference to the Convention on the Rights of the Child (“the Convention”), to which India is a State party. Below are some Articles from the Convention the Court could have appended to its observation on children’s interests and parental responsibilities:

Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

Article 5
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.

Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

Article 18
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.
3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.

These Articles recognize the same core principles that the Court places emphasis on. Aside from this, the Committee on the Rights of the Child has reiterated, through working groups and recommendations, the value of the family environment in a child’s development and the role of the State in regulating separation of the child from its parents. In doing so, the Committee observes the nature of the responsibilities that parents have in childcare even where they are not the primary caretaker or caregiver – the very principle that the Court seeks to develop here.

Most crucially, the Court, in this case, has effectively carried out its duties under Article 18. It is, therefore, slightly puzzling that the Convention finds no mention here. This despite a catena of judgments where courts in the country have adopted the practice of relying upon the Convention while making assessments on custody (prominent examples are here and here).

The Court’s Missed Opportunity

There are three reasons I put forth as to why we must regard this as a missed opportunity. The first two address the advantages relying upon/mentioning the Convention would have brought, and the third addresses why this case was the perfect opportunity to achieve these ends.

First, the Convention, and international law on human rights suffers from a visibility problem in India. A recent study discovered that the Convention was implemented poorly, slowly, and in isolation, which prevented the State from providing the range of protection to children’s rights that the Convention demands of it. International law is not communicated frequently in the Courts, nor by the State, and its relevance in the State is declining rapidly. This judgment provided an opportunity for the Court to provide visibility to the Convention. This Supreme Court works on precedent in ratio decidendi, but this does not forbid reliance on obiter dictum from past decisions – the practice of the Court reveals a fondness for obiter. Providing visibility to the Convention, in this case, would likely lead to the Court applying the Convention in making future decisions involving children’s rights. This would increase compliance with and implementation of the Convention in India.

Second, multilateral treaties rely upon reciprocation and cooperation. This is particularly true in the case of human rights treaties, and the Convention recognizes this in the preamble and in several Articles, including Article 45. Now, the worst-case scenario here, assuming non-cooperation, is the “treaty domino-effect“, where the violation of an international obligation by one State leads to other violations committed by other States. This, however, also presents us with the opportunity to look at the best-case scenario, where recognition and compliance with conventions and treaties bring forth similar compliance and cooperation by other States, strengthening international law. In a world rife with issues of child trafficking and child labour exploitation (specifically in Southeast Asia), India’s reaffirmation principles of the Convention would promote and solicit compliance from neighbouring States. It is particularly important for India as a State to do so, given that it is yet to sign or ratify any of the Hague Conventions and the protection that those conventions offer to children.

Finally, turning to why the Supreme Court, and this case, was the right vehicle for this to take place. In my introduction, I touched upon the fact that domestic courts have become agents in the development of international law. This has taken place because of the manner in which international law has become judicialized in the past few years. There are more cases now that call for an application of international law in domestic courts and tribunals – which contributes to the effort to create obligations for the State that are precise and devoid of political attachment. The impact of this is evident in transnational relations and the “horizontal” international law that applies between States – for example, where courts rule on the validity of arbitral awards, or on extradition requests. It is less evident in “vertical” international law, which governs the relationship between States and private parties. One contributing factor is judges’ general reluctance to use international law where domestic law is readily available – as is the case here. Another is a lack of awareness about applicable international law. This allows for the development of stronger tenets in domestic law, but the shoddy implementation of international law and protections available thereunder, a consequence that is particularly dangerous in States which are not signatories to Optional Protocols to human rights treaties.

India is one of these countries. This case, therefore, represented an opportunity for the  Court to buck the trend and rely on international law in an appropriate manner – especially given that the Court merely elucidated internationally recognized principles of child rights law. The Court should have carried out its function as a domestic agent in international law and contributed to the jurisprudence that is still developing on the Convention.

Concluding Remarks

There exist additional arguments for the general incorporation and application of international law by domestic courts, most of which center around the ability of these courts to define the precise nature of States’ obligations, and contribute to the discourse on the contours and protections available to individuals as a result of these obligations. There are likely to be several instances where courts in India can make use of international law in arriving at their conclusions, or in supporting them. All we can do is wait and see if these courts seize that opportunity.

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Human Rights, India, International Court of Justice

Anticipating X v. India: Thoughts on litigating the Citizenship (Amendment) Act

Summary

On 11 December 2019, the Indian Parliament passed the Citizenship (Amendment) Act. The Act received Presidential assent the next day, and will come into force when notified by the Government. When news of this broke, peaceful protests erupted across the nation in response, voicing concern about the ambitions and implementation of the Act. These protests aim to engage the Government with dissent about the Law. It is targeted specifically against the backdrop of other Law and policy that operate in India and its constituent States at the moment: including, but not limited to the National Register of Citizens. This post is in furtherance of some States issuing statements against these laws, seeking protection for religious minorities. It operates under the assumption that taking cognizance of these happenings, at least one State will consider international litigation and seek the intervention of the International Court of Justice in this matter. The ambition of this post will be to outline a possible legal strategy for these States to allow for the most meaningful intervention by the Court.

Introduction

The Citizenship Act, 1955 regulates on what grounds an individual may be granted Indian citizenship. Under the Act, illegal migrants are defined as foreigners who: (i) enters the country without valid travel documents, like a passport and visa, or (ii) enters with valid documents, but stays beyond the permitted time period, and are not entitled to citizenship.

Illegal migrants may be imprisoned or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920. In 2015 and 2016, exercising powers under these Acts, the Government issued notifications exempting certain groups of migrants from imprisonment and deportation. These groups are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who arrived in India on or before December 31, 2014.

In furtherance of these notifications, the 2019 Amendment with which we are concerned makes the abovementioned groups of migrants eligible for citizenship. It excludes from its purview Muslims who are illegal migrants. Additionally, it specifies that the Law will not have effect in certain regions in Northeastern India.

The present edition of the National Register of Citizens (NRC) is a creature of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, formulated under the Citizenship Act, 1955. The Rules stipulate the creation of a Register of all Indian citizens residing across the entire country. Individuals have to prove their citizenship in order to be included on the Register. At present, however, the Register has been prepared only in Assam. The rationale behind this selective implementation deserves more context.

Assam is a State in the Northeastern part of India, bordering Bhutan and Bangladesh, thus experiencing a large influx of migrants. In this background, an NRC for the State was prepared in 1951 utilizing census data. However, that was not regularly maintained or updated. The Bangladeshi Liberation Movement had created political and identity upheaval in Assam, leading to the Illegal Migrants (Determination by Tribunal) Act – creating a separate tribunal process for identifying illegal migrants in Assam. Additionally, the Assam Accord was signed, by which specific cutoff dates for citizenship and voting rights were agreed upon. Assam as a State faced several political upheavals, leading to the signing of the Assam Accord. In 2005, however, the Supreme Court of India struck down the Illegal Migrants (Determination by Tribunal) Act, leading to a revival of the State NRC-mechanism.

Subsequent State Governments, however, failed to update the NRC, leading to a petition in the Supreme Court in 2009, and a Court-facilitated procedure for the updating of the Register, which required individuals in Assam, or of Assamese origin to trace their lineage back to the National Register of Citizens prepared in 1951, or to any of the Assamese electoral rolls prepared till the midnight of the cutoff date [stipulated as 24 March, 1971 – the date of Bangladesh independence].

The Union Government has announced that it seeks to implement this National Register of Citizens across the nation, which would require all individuals to prove citizenship credentials to an appointed authority. While the Citizenship (Amendment) Act and the National Register of Citizens have come under criticism individually, it is their conjoined impact that is far more dangerous. Mixed in with the Hindu-based ideology underlying the governance of the ruling party (which has absolute majority in Parliament), these laws allow for the systematic exclusion of Muslims from attaining Indian citizenship.

With this background, we jump into what sort of international litigation may be feasible.

Jurisdictional Issues

The International Court of Justice will have to be satisfied that it has jurisdiction over the matter.

The Court has jurisdiction over contentious cases and advisory opinions. An advisory opinion is legal advice provided to the United Nations or a specialized agency by the International Court of Justice, in accordance with Article 96 of the UN Charter. The General Assembly and the Security Council may request advisory opinions on “any legal matter”, while other organs and the specialized agencies may request advisory opinions on “legal questions arising within the scope of their activities”. It is nearly impossible to see any United Nations body or specialized agency seeking the intervention of the Court. This is largely because States, including Permanent Members of the Security Council, have indicated that they believe that the matter is entirely within India’s domestic jurisdiction, and will oppose any resolution requesting for an advisory opinion by the Court.

Any case will therefore have to involve the contentious jurisdiction of the Court, which can be invoked either by way of special agreement, or through treaties/conventions (in terms of a compromissory clause), or by way of a declaration recognizing the compulsory jurisdiction of the Court (optional clause declarations).

A special agreement requires the consent of both parties, and is unlikely to be reached, as India will be averse to litigating this matter. The multilateral human rights treaties signed by States do not provide for the jurisdiction of the Court, and where they do, India has not signed or ratified those instruments. This would lead any State to invoke India’s optional clause declaration.

The declaration that India submitted to the Court included the following reservations:

(1) disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement;
(2) disputes with the government of any State which is or has been a Member of the Commonwealth of Nations;
(3) disputes in regard to matters which are essentially within the domestic jurisdiction of the Republic of India;
(4) disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, fulfilment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved;
(5) disputes with regard to which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than 12 months prior to the filing of the application bringing the dispute before the Court;
(6) disputes where the jurisdiction of the Court is or may be founded on the basis of a treaty concluded under the auspices of the League of Nations, unless the Government of India specially agree to jurisdiction in each case;
(7) disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction;
(8) disputes with the Government of any State with which, on the date of an application to bring a dispute before the Court, the Government of India has no diplomatic relations or which has not been recognized by the Government of India;
(9) disputes with non-sovereign States or territories;
(10) disputes with India concerning or relating to: (a) the status of its territory or the modification or delimitation of its frontiers or any other matter concerning boundaries; (b) the territorial sea, the continental shelf and the margins, the exclusive fishery zone, the exclusive economic zone, and other zones of national maritime jurisdiction including for the regulation and control of marine pollution and the conduct of scientific research by foreign vessels; (c) the condition and status of its islands, bays and gulfs and that of the bays and gulfs that for historical reasons belong to it; (d) the airspace superjacent to its land and maritime territory; and (e) the determination and delimitation of its maritime boundaries.
(11) disputes prior to the date of this declaration, including any dispute the foundations, reasons, facts, causes, origins, definitions, allegations or bases of which existed prior to this date, even if they are submitted or brought to the knowledge of the Court hereafter.

Any State seeking to take the matter of these laws to the International Court of Justice will have to do so after passing the hurdle of these jurisdictional reservations. This process is substantially easier if the State looking to take India to the Court is a non-Commonwealth nation [owing to reservation (2)]. Should the country be a Commonwealth nation, however, the Court will have an opportunity to re-examine the legality of reservations which exclude disputes with individual member nations, or groups thereof, which we have previously examined on this blog here.

In either case though, two jurisdictional hurdles will remain. India’s reservations require that all States to a multilateral treaty be present before the Court where the dispute concerns the interpretation and application of that treaty, except where it provides special agreement otherwise. Obtaining that special agreement is likely to be a challenge. As will be examined below, however, it is entirely possible for this case to proceed to the Court without the question of treaty-based obligations.

Finally, India may seek to argue that this matter is “essentially” within its domestic jurisdiction. Unlike the United States’ reservation, this is not a self-judging reservation, thus preventing issues of invalidation of the declaration from arising.

India’s argument may find itself on the fact that there exists judicial and administrative recourse, in addition to appeal procedures and regulations in respect of both the NRC and the CAA in the territory of India. It may also argue that citizenship is entirely a question of domestic State affairs, specifically because States are, within their sovereign power, entitled to make regulations and provisions as to its determination. These powers, though limited by instruments of international law, do not take away State sovereignty over the matter, underscoring domestic jurisdiction.

India’s ministers have previously claimed that Western standards of human rights are not applicable in the Republic of India, and cannot be applied indeterminately. Thus, it is not impossible to rule out an Indian argument that human rights also fall squarely within the purview of domestic jurisdiction, given that they are regulated by the Constitution of India and other legislation.

The first claim is easily refutable. This hypothetical case does not exclusively involve questions of citizenship. It rather involves questions of various human rights abuses taking place in the process of citizenship determination and in the face of dissent. This brings us to the second claim. The plea of “domestic jurisdiction”, where not self-judging, has in the past necessitated that the State making such a plea is able to prove that the subject-matter of the dispute is largely within the State’s domestic jurisdiction, having an “internal attachment” and is not regulated in large parts by international law. Where co-extensive subjects exist, it is clear that States, through their national legislation must give force to their international obligations. Thus, although domestic legislation enforces human rights, it will be improper for India to claim that human rights are “essentially” within its domestic jurisdiction – specifically because human rights law is a dynamic subject protected by international and national laws, allowing for recourse where domestic law fails to safeguard these rights.

This post will now proceed on the assumption that the Court has jurisdiction. The most convenient way for this to occur (a TL;DR of sorts), would be if the State was a non-Commonwealth state, without raising any of India’s treaty obligations we outline below.

Issues on Standing 

Should the Court find that it has jurisdiction, it will have to examine whether the State in question has standing to appear in the matter. Standing essentially determines which parties can lay claim before a Court, by showing a connection with the dispute at hand in order to justify their participation in the case. Part III of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) lays out how those rules are implemented. They require that States invoking responsibility are either “injured” (Article 42), or satisfy the requirements under Article 48.

The threshold for “injury” under Article 42 requires the State appearing before the Court to prove that some form of injury has taken place. Given the nature of the claim, it is difficult to see what injury any State will be able to raise. There is an academic argument that a State will be able to show “injury” because an obligation it subscribes to has been breached, however, this appears to fall short of the kind of injury envisaged by the International Law Commission in the drafting of the Articles on State Responsibility. India’s neighbouring countries: particularly Bangladesh and Pakistan might be in a position to claim “injury”, but should they be the States arguing against India, the “Commonwealth” jurisdictional hurdle will prevent any resolution.

A stretch would be to examine a claim under Article 42(b)(ii) of the ARSIWA. If any State does raise that as the basis of standing, the Court would have to lay out jurisprudence on the distinction between the term “injured State” and “specially affected State” as used within that article, and whether or not those are distinct requirements which do not overlap. I believe this is an unlikely circumstance.

Any State is more likely to find its standing grounded within Article 48(1)(a) or Article 48(1)(b). These concern circumstances where the obligations breached are owed to a group of States, or to the international community as a whole. As will be discussed below, all human rights obligations which form a part of a potential claim on merits are either obligations erga omnes, or obligations erga omnes partes, satisfying the requirement under Article 48.

The Court, in Questions Relating to the Obligation to Prosecute or Extradite, found that Belgium had standing on the basis of obligations erga omnes partes, specifically in respect of the Convention Against Torture. However, obligations erga omnes can exist outside of treaties as well. The prohibition of torture, for example, has recently been recognized by the International Law Commission as a jus cogens norm and an obligation erga omnes, allowing for the invocation of standing on this basis.

We will examine standing in depth for each claim on merits, discussing how the obligation in question is one that is erga omnes or erga omnes partes.

Issues on Merits

Assuming these issues do not pose an impediment to the exercise of the Court’s jurisdiction, and the matter reaches the Merits phase, there are several issues that a State may choose to contend. I will explore these issues in three parts: (1) treaty-based obligations, (2) obligations which are jus cogens norms, and thus fall under erga omnes standing, (3) customary international law obligations having erga omnes character

Treaty-based obligations

As stated above, any case on the basis of treaty-based obligations is difficult to envisage. For hypothetical sakes’, therefore, this part assumes that India has agreed to litigate multilateral treaty-based claims as well. Should these take place, any State will be in a position to rely upon the following treaties, which crystallize rights discussed more in-depth below. These would be brought on the basis of erga omnes partes standing. Naturally, this part is brief – these are claims least likely to succeed.

Article 2 of the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights both guarantee non-discrimination, as outlined earlier. Article 26 of the ICCPR specifically affirms non-discrimination on the basis of religion. Finally, Article 19 of the ICCPR guarantees the right to expression, which, it has been agreed, includes the right to access the internet.

Article 5(c)(iii) of the International Convention on the Elimination of All Forms of Racial Discrimination calls for the prevention of racial discrimination in the matter of civil rights, including the right to nationality. Article 1(1) of that Convention lays out that “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. The Citizenship Amendment Act discriminates between individuals from other neighbouring States, including Sri Lanka and Nepal, who may face persecution and seek Indian citizenship and other nationals, without a reasonable basis for this discrimination. State responsibility may exist as a result, as outlined here.

Article 2(1) of the Convention Against Torture, to which India is a State party, requires that State Parties shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

Although India’s reservations make these treaties unhelpful on their own, their existence is suitable to locate customary international law obligations. The travaux preparatoires of these treaties also enable us to identify how a norm may be treated as an erga omnes obligation for the purposes of standing.

Jus cogens norms

Jus cogens norms, or peremptory norms of general international law are norms from which no derogation is permissible. This means that they are binding universally, across all circumstances, without exception. Norms possessing this character are so fundamental that they are considered to be obligations erga omnes. The International Law Commission’s Draft Conclusions on peremptory norms of international law list out illustrative norms of peremptory international law including the prohibition of torture. It is this norm we are concerned with here.

Article 1 of the Convention Against Torture contains a definition of torture:

Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

A simplified definition would be as follows: the intentional infliction of severe mental or physical suffering by a public official, who is directly or indirectly involved for a specific purpose. There is no singular means by which torture can take place, and various intergovernmental organizations have focused on the phrase “cruel, degrading, and inhumane treatment” as being the yardstick of Governmental behavior constituting torture.

Arbitrary detention, for example, constitutes this cruel, degrading and inhumane punishment. Global jurisprudence also recognizes that detention for an indefinite period of time also falls squarely within this definition and the international standard for torture, something affirmed by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. In his 2018 Report to the Human Rights Council, the Special Rapporteur notes that States’ policies on migration-based detention require special attention owing to their “deprivation of liberty”. He states that this would take place where a detained individual does not have a practicable or available opportunity to exercise his freedom to leave [through mechanisms such as bail]. Finally, the Special Rapporteur speaks of conditions in these detention camps, and how cruel, degrading and inhumane treatment may be inflicted upon detainees by police officials denying detainees basic human rights such as access to food and water, leading to severe mental and physical anguish, including death.

The policy put in place by the Union Government under the amended Citizenship Act coupled with the National Register for Citizens seeks to detain individuals identified as illegal migrants in specially constructed, confined detention camps till deportation, an indefinite period of time. This policy clearly constitutes torture, which is impermissible as outlined above.

Finally, evidence has recently emerged of deaths occurring in these detention camps. While the Government has assured individuals that these deaths occurred owing to illness, and not “pressure or fear”, fresh data is emerging each day – as no independent investigations have taken place as yet. States monitoring the issue ought to keep track of reporting being carried out, for it is not improbable that detention in degrading circumstances has led to deaths. Something that ought to be noted at this juncture is that this is not exclusively the fault of the Executive, but also of the judiciary in India, which ordered the construction of these mass detention camps.

Customary international law 

There are a variety of obligations India owes under customary international law that a State may seek to litigate: (1) the prohibition against discrimination, (2) the obligation of non-refoulement, (3) the obligation to protect the freedom of speech and the right to access the internet. These will be addressed in turn.

The prohibition against discrimination is recognized as a customary international law obligation. More specifically, the prohibition against religion-based discrimination is a customary international law obligation arguably having erga omnes character. There is evidence of opinio juris in this respect, insofar as States have consistently recognized equality and freedom from religious discrimination as basic human rights. The Universal Declaration on Human Rights recognizes this in Article 7, and specific treaties such as the International Covenant on Civil and Political Rights (Article 2 and 26), the International Covenant on Economic, Social and Cultural Rights (Article 2), and the International Convention on the Elimination of All Forms of Racial Discrimination(Article 5) reinforce this belief.

Examining State practice in this regard, we can see a general and consistent practice emerge. States, including India, do, within their foundational legal texts or by force of Statute recognize a prohibition on religious-based discrimination. A few examples of States with this prohibition include South Africa and Canada.

Its erga omnes character deserves further explanation. In the past, the Court has ruled that some international obligations entered into by States are obligations erga omnes. These decisions provide a useful basis to examine what factors the Court looks into in deciding on whether an obligation has erga omnes character. In Barcelona Tractions, the Court held that these obligations are “the concern of every State”. In the East Timor case, the Court relied on the evolution of self-determination from the Charter of the United Nations and United Nations practice, looking specifically at General Assembly resolutions adopted with universal consensus. In the Nuclear Weapons Advisory Opinion, the Court stated that “a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity'”, that they have erga omnes character.

The Court found that these rules had erga omnes character because of how fundamental these precepts are to the human person, and how consistently and universally States had accepted and ratified their importance. The argument for the prohibition of genocide, and its recognition as a jus cogens norm having erga omnes character stems from how morally incomprehensible the denial of a right of existence of entire human groups and the discrimination between human groups that ensues is. This was the basis of the Inter-American Courts‘ recognition of non-discrimination as being a jus cogens norm. In fact, the protection from racial discrimination is identified by the International Court of Justice as being an erga omnes obligation, paving the path for its prohibition and non-derogability.

It is clear that the Citizenship Amendment Act discriminates against Muslim illegal migrants from Afghanistan, Bangladesh and Pakistan, denying them the opportunity to gain citizenship in India – an opportunity provided to non-Muslims who are illegal migrants from these nations. This falls foul of India’s obligation under customary international law not to discriminate on the basis of religion.

The text of the Citizenship Amendment Act shows that the legislation seeks to deal with persecuted minorities who are migrants.  Thus, the second aspect of customary international law that deserves examination is how this fall short of India’s obligations towards migrants generally.

In 1951, States adopted the Convention Relating to the Status of Refugees (the Refugee Convention), and amended the same by adding the 1967 Refugee Protocol. These instruments, which are ratified by 145 States, are the global framework for refugee protection. As India is not a State party to either the Convention, or the Protocol, it is fitting that obligations contained therein are examined under the lens of customary international law.

The definition of “refugee” contained in the Refugee Convention crystallized the customary international law definition of the phrase. It states, within Article 2, that a refugee means any person who owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, flees his country seeking protection in another. Article 33(1) of the Refugee Convention contains an expression of the principle of non-refoulement, which prohibits a country from returning refugees to countries where they face a clear threat of persecution on account of race, religion, nationality, political opinion, among others. The Convention itself permits derogation where a refugee is a threat to national security, or where the criminal nature and record of a refugee is a danger to the community in the host state.

This principle of non-refoulment has attained customary international law status with an erga omnes character. There is widespread evidence of State practice in this regard, including where States have responded to UNHCR’s representations by providing explanations or justifications of cases of actual or intended refoulement, thus implicitly confirming their acceptance of the principle. The existence of opinio juris is evidenced by universal acceptance in conclusions of the UNHCR Executive Committee and in resolutions adopted by the United Nations General Assembly.

However, the Citizenship Act, as amended, contravenes this legal obligation. This is because Muslims who enter the country from Afghanistan, Bangladesh, and Pakistan, irrespective of what reason they are persecuted for in their home country, would be classified as illegal migrants. They would then be subject to the Foreigners Act, which allows for detention and deportation back to their home country. This makes deportation of persecuted individuals back to their home country an explicitly legal process according to domestic law. The argument against this: that it will not happen, and that it is an unlikely reality, is specifically unconvincing owing to India’s recent deportation of Rohingya Muslims back to Myanmar. The law in itself is sufficient, therefore, to be classified as violating India’s obligations to ensure non-refoulement under international law.

The Government has defended the law’s introduction on the basis of how easily it allows individuals persecuted in geographically neighbouring countries to gain citizenship in India. This is flawed, for it appears to be premised on the belief that it is only religion which can be the basis of persecution in these neighbouring States, but additionally, that the Muslim community is not in the minority in any of these States – thus being safe from persecution.

Finally, there is a need to address the Indian response to the protests. The protests have led to the imposition of curfew orders across several cities, including communications blockades and internet shutdowns in furtherance of Governmental orders. International law recognizes the right to access the internet as a right guaranteed under customary international law, something we have discussed earlier here. States are entitled to restrict these rights in order to protect national security and public order. However, the scope and manner of restrictions on internet communication in India have been disproportionate to those necessary to combat issues of public order (assuming they existed).

Concluding Remarks

There is evidence available of a flagrant violation of international human rights law that is attributable to the Indian Government. There is evidence to show that this is an act having a continuous character: for even if the acts have taken place already, the effects of these acts will continue to violate international law.

The reparations that can be sought as a result are manifold, but should primarily be in the form of provisional measures – to prevent the continuing character of these acts, and restitution: to repeal the law and set aside the policies that allow for this discrimination to take place. Alternate remedies that should be sought may be in the form of satisfaction: a recognition that this will not occur in the future.

Should the Court’s jurisdiction be adequately seized, the Court will be provided with an additional opportunity to act as a bastion for human rights – a role it is currently attempting to fulfill in the case against Myanmar. The easiest manner for this to occur is for a non-Commonwealth State to raise India’s obligations in international law, outside of treaties and outside of any instruments. These would be appeals to India’s fundamental, moral obligations under public international law. It is unfortunate that we cannot turn to Gambia, whose Commonwealth status will impede resolution. Perhaps another Gambia will emerge, for whom a blueprint is, as evident, ready.

 

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Human Rights, India

Faheema Shirin v. State of Kerala: Inadequately using international law to define the right to access the internet in India

A single-judge Bench of the Kerala High Court has laid down that the right to internet access is a part of the right to privacy and the right to education. With Governments increasingly using communications and internet clampdowns as tools in the face of resistance, the conversation around the contours of internet access has become more prominent at the global stage. As a result, although the facts didn’t necessarily demand a declaration of the existence of this right, the Court’s reasoning and pronouncement is noteworthy. Through this post, I will explain the Court’s decision, examine the nature of the right to the internet in international law, and analyze how the Supreme Court of India has the opportunity to expand upon the judgment of the Kerala High Court.

In Faheema Shirin v State of Kerala, an undergraduate student was expelled from her hostel in Kozhikode because she refused to sign an undertaking promising to abide by the hostel rules that prohibited the use of mobile phones between 6pm and 10pm. The student challenged the rules on the ground that they were discriminatory (as they applied exclusively to the girls’ hostel), and that the ban on mobile phones impacted her right to access knowledge and her right to privacy. The University argued that the rules were in furtherance of complaints by parents, and thus were a reasonable restriction to enable study time.

The High Court held that the petitioner was to be re-admitted, as the restrictions were unconstitutional. This finding was premised on the fact that the regulations were not only discriminatory but also infringed upon two rights: the right to privacy and the right to access knowledge. The Court also held that the right to access the internet was a part of these rights.

In doing so, Judge P.V. Asha made references to numerous sources of international law, as well as decisions of the Supreme Court of India. First, by referencing United Nations Human Rights Council Resolution 20/8 and Resolution 23/2,  as well as United Nations General Assembly Resolution 26/13, the Court emphasizes the importance of the right to access the internet, specifically for women. These resolutions recognize the potential discrimination that internet infrastructure and access to technology may cause, and calls for equal participation in access to the internet for women specifically. By then making reference to Vishaka & Ors. v. State of Rajasthan, the Court reaffirms that international law (in light of Article 51(c) and Article 253 of the Constitution of India) can be read into fundamental rights in the absence of enacted domestic law, provided there is no inconsistency between them. These observations allow for the Court’s conclusion on page 20 of the judgment, that the right to have access to internet becomes a part of the right to privacy and the right to education under Article 21 of the Constitution of India.

This is all well and good, for it appears, prima facie, that there has been a crucial usage of international law to concretize a right under the Constitution of India. While true, I argue with the following. The Court had the opportunity to engage in more depth with international law instruments it referred to, in order to bring clarity regarding the contours of the right to access the internet under the Constitution of India. This lack of clarity has led to ambiguity which the Supreme Court of India has the opportunity to, and must, resolve soon.

There are two sources under which it can be argued that the right to access the internet is protected within international law: treaties, and customary international law.

The argument relying on treaties argues that the right to access the internet is a sub-right within the freedom of expression, which is protected under treaties including the ICCPR and the UDHR (Article 19). It applies an evolutionary interpretation to the language of the treaty to further this argument, using principles affirmed by the International Court of Justice in Navigational and Related Rights. The argument underscores that the evolution of the internet, and its use to express opinions in recent times means that although the text of the treaties did not account for the development of the internet, its spirit would require this to be accounted for and protected. The text of Article 19(2) lends credence to this argument. It guarantees the right to seek, receive and impart information and ideas “either orally, in writing or in print, in the form of art, or through any other media of his choice.” This approach is one that is supported by the United Nations framework, including the content of the UN Human Rights Committee’s General Comment 34, which at paragraph 4, states:

There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto.

The European Court of Human Rights has also recognized that preventing access to information by restricting access to Internet websites is a violation of Article 10 of the European Convention on Human Rights.

The second argument grounds the right within customary international law. While the 2011 Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression found few States applying human rights terminology to the internet, this has changed in recent times. Greece affirms this right Constitutionally, and Sudan recently included the right to the internet as a stand-alone right within its Draft 2019 Constitutional Charter (Article 56).  In 2016, the United Nations Human Rights Council released a non-binding resolution condemning intentional disruption of internet access by governments.  In addition, States, under the Universal Periodic Review mechanism prescribed by human rights treaties have formulated Internet-related recommendations. All of these point to various sources of a generally accepted State practice, while various General Assembly resolutions cited above point to arguably, the opinio juris necessary to form a rule of customary international law.

The contours of the right to access the internet, under these sources, are distinct from one another. The treaty-based argument would find the right to access the internet stemming from the right to speech and expression, thus limiting its scope thereto. Recognizing the customary nature of the right to access the internet would rather place the right to access the internet as a stand-alone right. It would recognize the value of the internet in today’s world not only to empower the exercise of the right to freedom of speech and expression but the enjoyment of various other human rights as well.

This brings us back to my thoughts.

The Kerala High Court’s result and conclusion deserves commendation. Its approach and appreciation of international law however, is questionable.

The Court had an opportunity to lay down what strand of international jurisprudence the Indian right to access the internet would draw from: whether treaty-law (where India is a state party to the ICCPR), or customary international law. Had the Court exercised this opportunity, irrespective of which route it took – it would have provided guidance for future considerations of the right to access the internet and censorship on the internet in general. This points to a broader issue with the way Courts in India have generally made reference to international law instruments. In several cases, like this, where the opportunity presents itself, the Court fails to engage with the instruments it references – merely choosing to embolden text to add emphasis to a particular portion of the instrument it is referencing. In this case, the reference to the UN Human Rights Council and General Assembly resolutions are apt, and warranted. However, their reference, in the absence of engagement, raise fundamental questions within international law’s interaction with domestic law in India. Is the Court recognizing these instruments as representative of the right to access the internet under customary international law – and thus finding the right within the Constitution of India? Or, is the Court using these instruments as policy documents to emphasize the discriminatory effect of internet infrastructure?

While the Court’s conclusion points to the former, that link is speculative – at best.

Additionally, while the link to the right to privacy and the right to access information exists, the Court could have potentially explored how the right to access the internet contributes to the right to freedom of speech and expression. Undoubtedly, recognition under Article 21 allows for later expansion within Indian jurisprudence, but this is an opportunity missed.

As a result, there are gaps left to be filled. The Supreme Court of India will have the opportunity to consider the right to access the internet (and other media) in a petition challenging the communications clampdown in Jammu & Kashmir. I have no doubt that the decision of the Kerala High Court will provide guidance to the Supreme Court, and will find mention in that decision. However, the Court has the opportunity now to engage with the broader question of how the right to access the internet under the Constitution of India intersects with India’s obligations under international law, and the state of affairs in international law generally. The Court must seize that chance, for it is not only an opportunity for the Court to reaffirm its role as a champion of human rights, but it will enable the Court to contribute to developing international legal jurisprudence on the right to access the internet.

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Human Rights, India, International Court of Justice

Kashmir, and what issues arise if Pakistan actually goes to the International Court of Justice?

Day before yesterday, the Foreign Minister of Pakistan announced that the Cabinet had granted in-principle approach to take the Kashmir case to the International Court of Justice. Whether the Government chooses to initiate this proceeding is yet to be seen. This blog post will attempt to examine what issues might arise before the Court should Pakistan engage its functions.

Some Background

Brief context is essential. Kashmir, geographically, belongs in the Indian subcontinent. Historically, once established as a princely State by the Treaty of Amritsar, it existed as so till the partition of India in 1947. It was subsequent to the Partition that the region fell into a State of flux, in which it has remained. After experiencing incomparable violence through international and national conflict, today, Kashmir stands as internationally disputed territory, administered by three countries. Pakistan controls the northwest portion, India controls the central and southern portion, and the People’s Republic of China controls the northeastern portion. The Pakistani portion is divided into two de facto provinces, which are Gilgi-Baltistan and Azad Kashmir. The Chinese-administered portion is Aksai Chin and Trans-Karakoram Tract. Till the 5th of August, the Indian region existed under special status, as Jammu & Kashmir (a State). Its status was accorded by Article 370 of the Constitution of India, allowing the State to have its own Constitution, flag, and autonomy in administrative matters.

On 5th August, Government action (specifically involving the Parliament and the President), led to the modification of Article 370, revoking the special status of Jammu & Kashmir, making the Indian Constitution applicable to the region. While the Act only becomes effective on 31st October, 2019, it includes a reorganization of the geographical boundaries in the Indian region. Effectively, the old Jammu & Kashmir (J&K) will be succeeded by Jammu & Kashmir (a Union Territory with a Legislative assembly), and Ladakh (a Union Territory without a Legislative Assembly, and administered by a Lieutenant Governor). The Constitutionality of the action is widely debated, and is presently under challenge at the Supreme Court of India. The Indian Government also imposed restrictions in the J&K region, including the shutting down of communication and internet facilities, placing several leaders under house arrest, and deploying an increased number of troops. 

Subsequent to the move, the Chinese and Pakistani authorities reacted promptly. Pakistan voiced opposition to the move. Its opposition was grounded in various United Nations Security Council resolutions, including Resolutions 122, 123, and 126, which prohibit unilateral action to change the status in the region. Prior resolutions had also set up a Commission, and called for peace to be created in the region to pave way for a plebiscite (which has never taken place), and subsequent resolutions have affirmed and called for a cease-fire in the area. The Chinese Foreign Ministry Spokesperson issued statements reiterating the need for dialogue and a bilateral solution in the region, specifically opposing the creation of a Union Territory in Ladakh. A closed-door meeting of the United Nations Security Council was held on 17 August.

Pakistan’s statement regarding the case also adds that it will center around alleged human rights violations by India in Muslim-majority Kashmir.

Jurisdictional Issues

The Court will first have to decide whether it has jurisdiction over the matter. This case involves the contentious jurisdiction of the Court, which can be invoked either by way of special agreement, or through treaties/conventions, or by way of a declaration recognizing the compulsory jurisdiction of the Court.

A special agreement requires the consent of both parties, and is unlikely to be reached. The multilateral human rights treaties signed by both countries do not provide for the jurisdiction of the Court. Relevant bilateral treaties, such as the Shimla Agreement, while creating obligations between the States, do not provide for the jurisdiction of the Court. It only stipulates that the party will resolve differences by way of bilateral negotiations. This would leave Pakistan to invoke India’s declaration recognizing compulsory the jurisdiction of the Court, as the basis of the Courts’ jurisdiction, which creates the first issue.

The declaration that India submitted to the Court included the following reservations:

(1) disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement;
(2) disputes with the government of any State which is or has been a Member of the Commonwealth of Nations;
(3) disputes in regard to matters which are essentially within the domestic jurisdiction of the Republic of India;
(4) disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, fulfilment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved;
(5) disputes with regard to which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than 12 months prior to the filing of the application bringing the dispute before the Court;
(6) disputes where the jurisdiction of the Court is or may be founded on the basis of a treaty concluded under the auspices of the League of Nations, unless the Government of India specially agree to jurisdiction in each case;
(7) disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction;
(8) disputes with the Government of any State with which, on the date of an application to bring a dispute before the Court, the Government of India has no diplomatic relations or which has not been recognized by the Government of India;
(9) disputes with non-sovereign States or territories;
(10) disputes with India concerning or relating to: (a) the status of its territory or the modification or delimitation of its frontiers or any other matter concerning boundaries; (b) the territorial sea, the continental shelf and the margins, the exclusive fishery zone, the exclusive economic zone, and other zones of national maritime jurisdiction including for the regulation and control of marine pollution and the conduct of scientific research by foreign vessels; (c) the condition and status of its islands, bays and gulfs and that of the bays and gulfs that for historical reasons belong to it; (d) the airspace superjacent to its land and maritime territory; and (e) the determination and delimitation of its maritime boundaries.
(11) disputes prior to the date of this declaration, including any dispute the foundations, reasons, facts, causes, origins, definitions, allegations or bases of which existed prior to this date, even if they are submitted or brought to the knowledge of the Court hereafter.

The biggest hurdle here is the fact that India’s reservation includes disputes with governments who have been Members of the Commonwealth of Nations. That includes Pakistan. The Court previously found that it did not have jurisdiction over the Aerial Incident case owing to the same reservation. In that case, the Court found that these reservations constituted “accepted practice”, since States could decide which matters they wished to submit to the Court. In subsequent years, cases between India and other States have often been founded on multilateral conventions. A recent example is the Jadhav case, where India went to the Court under the Vienna Convention on Consular Relations.

It will be interesting to see if the Court chooses to use this opportunity to re-examine the legality of reservations which exclude disputes with individual member nations, or groups thereof. The Court has previously made observations on reservations to its jurisdiction in Nicaragua Jurisdiction, and can use this as an opportunity to develop that jurisprudence. In doing so, the Court will have to examine the effect of the Shimla Agreement and the clause contained therein which refers differences to be settled by way of “bilateral negotiations” on its jurisdiction.

The above approach assumes that Pakistan is keen to restrict the case to human rights issues. Should Pakistan be interested in raising other matters – including the reorganization of J&K pursued by the Government of India, India might raise objections under its reservations, namely (3) or 10(a). Subsequently, the Court will have the opportunity to re-examine self-judging reservations, and look at whether the reorganization strictly relates to “boundaries” – especially since the disputed territory creates administrative areas and lines of control. Whether the Court chooses to do so or not will be interesting to see.

Issues of Standing and Third Parties

Should the Court find that it has jurisdiction, it will have to examine whether Pakistan has standing to appear in the matter. Standing essentially determines which parties can lay claim before a Court, by showing a connection with the dispute at hand – to justify their participation in the case. Part III of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) lays out how those rules are implemented. They require that States invoking responsibility are either “injured” (Article 42), or satisfy the requirements under Article 48.

The threshold for “injury” under Article 42 requires the State itself to prove some form of material injury has taken place. Given the nature of the dispute, it is difficult to see what material injury Pakistan will be able to raise. A stretch would be to examine a claim under Article 42(b)(i) of the ARSIWA. If Pakistan does raise that as the basis of standing, the Court would have to lay out jurisprudence on the distinction between the term “injured State” and “specially affected State” as used within that article, and whether or not those are distinct requirements which do not overlap. I believe this is an unlikely circumstance, because Pakistan will find it difficult to show “injury” that has been caused.

Pakistan is more likely to find its standing grounded within Article 48(1)(a) or Article 48(1)(b), with human rights obligations within multilateral treaties potentially constituting erga omnes partes obligations. The Court could even look at whether customary international law obligations, including external self-determination, is an obligation erga omnes (more on this is in the next section, below). The Court, in Questions Relating to the Obligation to Prosecute or Extradite, found that Belgium had standing on the basis of obligations erga omnes partes, specifically in respect of the Convention Against Torture. We must wait to see if human rights obligations contained in multilateral treaties (which do not lay down jus cogens norms) can also be said to rise to that level.

More crucially, however, the Court will have to, at some point examine whether Pakistan’s standing is affected by any of its own actions. India is almost certain to raise obligations based on bad faith actions Pakistan has taken, and present violations attributable to the Pakistani Government. There are variations to the manner in which such a case may be presented. India, for example, might choose to show that there are corresponding illegalities that Pakistan has committed – by showing evidence of similar violations of human rights. In Oil Platforms, the United States of America raised a contention of clean hands. Iran argued that this was irrelevant in State-to-State matters., but the Court refused to engage with the matter. Whether the Court adopts a similar approach, or whether it deems that the doctrine diminishes Pakistan’s standing is a certain issue – and evidentiary burdens are likely to shift throughout the case on this point.

The last question in this phase is one of third States and interested Parties. Pursuant to Article 59 of the Statute of the International Court of Justice, the decision of the Court is only binding in respect of a particular case, upon the Parties to that dispute. It follows thereon that the Court cannot rule on the interests of a State where it is not present, or it does not give consent to the Courts’ jurisdiction in a particular dispute. This is in line with the Monetary Gold principle. Given the disputed nature of Kashmiri territory, it will be interesting to see first, if China intervenes in the case, and whether the Court permits that. If China does not intervene, the Court will have to decide whether or not it can exercise jurisdiction without China’s consent, and whether China does have a legal interest in the matter.

Issues on Merits

Assuming the Court wades its way past all the above issues, and the matter reaches the Merits phase, there are several issues the Court might be called upon to adjudicate. I will explore these in two parts, the first, assuming that Pakistan raises issues exclusive to human rights law, and the second, assuming that Pakistan goes beyond these issues – allowing for the Shimla Agreement to be examined.

(i) Human Rights Issues 

The statement of the Pakistani Foreign Minister suggests that Pakistan’s claim will focus on violations in Muslim-majority Kashmir. The inclusion of religion in the statement represents the likelihood that claims will be grounded in both the ICCPR and the ICESCR, which both States are party to. Given the nature of actions taken by the Government of India, it will be fascinating to hear which instances the Pakistani Government relies on in its claim, and what evidence it provides for its claims. Should the internet and communications clampdown be contested, however, it gives the opportunity for the Court to look at the right to the internet as a human right within the right to life. Given recent practice, including Sudan’s inclusion of the right to the internet as a human right in its 2019 Interim Constitution, a ruling on the customary nature of this right is one I am keen to hear.

Another issue that is likely to arise is one of self-determination. The right to self-determination has been recognized as a jus cogens norm by the International Law Commission on several occasions and was reaffirmed in its work at the Seventy-First session. The Commission, however, has not expressed a view on whether external self-determination specifically is a jus cogens norm, or whether the norm is merely recognized as having jus cogens character in the context of decolonization. In the East Timor case, however, the Court has held that the right had a character erga omnesPakistan and India will be able to dispute the contours of such a right, and whether India, by taking unilateral action reorganizing disputed territory, violated these obligations. It will be the first time the Court will be able to adjudicate upon what the broader obligation (to ensure self-determination) constitutes. The kind of evidence Parties produce is something I am keen to see, especially given the content of Security Council Resolution 47. On that note, the Court will also have the opportunity to explore if that Resolution, and subsequent Resolutions, created any specific legal obligations for both Parties.

(ii) Shimla Agreement

The Court might be called to adjudicate upon whether there was any violation of the Shimla Agreement has taken place. The Shimla Agreement stipulates that neither party shall seek to alter the Line of Control – between Indian-administered and Pakistan-administered Kashmir, unilaterally. The Court would then have to interpret whether the internal reorganization of territory amounts to a unilateral change along that line.

Conclusion

As is evident from a reading of the above, a lot of what issues arise before the Court is heavily dependent on what jurisdictional basis Pakistan approaches the Court with, and what claims it chooses to limit itself to. The Court, however, has the unique opportunity to become the harbinger of peace to a region that has been volatile and unstable for a very long time, and remains unstable even today. It will first have the chance to answer several academic questions on jurisdiction and standing. Should it find jurisdiction, however, it will be empowered to look at issues of human rights and their dynamic nature in todays age, and potentially provide some relief to warring neighbours. If there are issues of territory raised, the Court’s decision will certainly be of interest to the international community at large, given the kind of impact it could have on similarly unstable regions around the world.

Given its recent decision in the Jadhav case, I am keen to see whether or not it seizes the opportunity. Irrespective, with the kind of evidence both Parties will produce, should this reach hearing, the Court will be able to settle debates on evidence that it left unanswered in Jadhav.

Should this application go through, and proceedings initiate, the Court will also be able to prove its relevance in today’s world. The faith the Middle Eastern states show in the Court is evidenced by the rising number of cases those nations have brought before the Court, and the kind of decisions the Court has rendered (including in Qatar v. United Arab Emirates). This will be another test of whether the international community ought to repose its faith in the institution, and I look forward to seeing whether it upholds that bastion.

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India, Outer Space

Mission Shakti and India’s Obligations in Outer Space

Introduction

On March 27, 2019, the Defence Research and Development Organisation (DRDO), India’s military research and development organization announced that India had successfully conducted an Anti-Satellite missile test. The launch took place from the Dr AP J Abdul Kalam Island in Odisha. A DRDO-developed Ballistic Missile Defence (BMD) Interceptor Missile successfully engaged an Indian orbiting target satellite in Low Earth Orbit (LEO) in a ‘Hit to Kill’ mode. The interceptor missile was a three-stage missile with two solid rocket boosters. The destruction of the satellite was confirmed by the Indian Prime Minister, Narendra Modi, in a national press conference.

Anti-Satellite Weapons (ASAT) are described as systems which are designed to incapacitate or to destroy satellites. Although no States have utilized these anti-satellite weapons in warfare, prior to Mission Shakti, the United States, Russia, and China had all tested ASAT weapons. The United States of America used an ASAT to destroy a failing satellite, owing to the fact that there was hydrazine – a toxic substance onboard that satellite. Russia has previously tested ASATs on multiple occasions, and while the flight-tests have been successful, no data is publicly available as to whether or not the tests destroyed any satellites.

China’s test is the test that drew the most amount of criticism from States. In 2007, China fired a kinetic warhead against a Chinese weather-satellite, and drew flak from other States owing to the amount of space debris the test had created. The incident also sparked renewed conversation and interest in the militarization of outer space.

With India gearing up for elections, several national and regional parties have been quick to comment on the success of the launch, claiming credit for the operation. The Prime Minister’s speech has also been investigated by the Election Commission of India. However, this post does not seek to engage with any of those claims. Instead, it will examine the legality of Mission Shakti, using publicly available information, and investigate whether or not Mission Shakti breached any of India’s international obligations. This investigation is crucial and relevant, since the Ministry of External Affairs has taken a clear stance that the test did not violate any of India’s obligations under international law.

The Legal Framework for Outer Space

Outer space is regulated broadly, by a system of five treaties, and five sets of principles adopted by the United Nations. These treaties and principles create the basic legal framework, which can be summarized as follows:

  1. Ensuring non-appropriation of outer space by any one country and arms control,
  2. Protecting the freedom of exploration in outer space
  3. Creating a liability regime for damage caused by space objects,
  4. Creating a regime for the safety and rescue of spacecraft and astronauts,
  5. Preventing harmful interference with space activities and the environment,
  6. Ensuring the notification and registration of space activities and scientific investigation
  7. Preventing the inequitable use of natural resources in outer space

India has ratified the Outer Space Treaty, the Liability Convention, the Registration Convention and the Rescue Agreement. It is a signatory to the Moon Agreement, and therefore, by virtue of Article 12 of the Vienna Convention on the Law of Treaties, and the position under customary international law, has agreed to be bound by principles contained therein.

At this juncture, it is important to note that by virtue of Article III of the Outer Space Treaty, States Parties agree to carry out all activities in the exploration and use of outer space and celestial bodies in accordance with principles of international law and the United Nations Charter. Consequently, India, in its conduct of activities in outer space, is also bound by general principles of international law, and the Charter of the United Nations.

Legality of Anti-Satellite Weapons

In light of this legal framework and India’s obligations, it becomes crucial to examine the legality of anti-satellite weapons, and specifically, India’s interceptor missile under three headings: The Space Treaties, The United Nations Charter, and Customary International Law.

  • The Space Treaties

The relevant provisions of the Outer Space Treaty are Article IV and Article IX.

Article IV of the Outer Space Treaty reads:

State Parties to the Treaty undertake not to place in orbit around the Earth any objects containing nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.

The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited.

Some individuals argue that a reading of Article IV is sufficient to conclude that the testing of any types of weapons was meant to be prohibited in outer space. However, it is important to note the distinction between paragraph 1 and paragraph 2 of Article IV. The demilitarization of outer space extends solely to “the stationing of nuclear weapons or any other kinds of weapons of mass destruction”. However, the position in respect of celestial bodies and the moon is much broader – it prohibits several activities relating to their militarization, including the testing of any kind of weapons.

This interpretation of the obligations under Article IV is possible because of the distinction between “outer space” and “celestial bodies”. The phrase “celestial bodies” refers to naturally occurring bodies in outer space, such as planets and asteroids. “Outer space” on the other hand, refers to the void between these celestial bodies. There is clear evidence from the drafting history of the Treaty that this was the intended application of Article IV, with the Soviet Union delegation refusing suggestions both on the complete ban of military activity in outer space, and on the ban on satellite launches for military purposes. This distinction means that the ban on “testing weapons of any kind” applies to “celestial bodies” and not to “outer space”, which is what allows for the legality of Intercontinental Ballistic Missiles. Since India’s anti-satellite weapons test did not occur on a “celestial body”, and merely took place in “outer space”, it does not fall foul of any Article IV obligations.

Additionally, Article IV has been interpreted to allow for a “passive” military use of outer space, but not any “active militarization”. States which launch satellites to assist with military functions on Earth rely on this distinction for the legality of their activities. In this view, putting weapons into orbit is inconceivable, but, military activity in space is permissible where States merely facilitate their military functions on Earth. Although critics argue that the use of kinetic weapons would fall under the “active militarization” of outer space, there is overwhelming support that scientific research is a passive military function. Since an anti-satellite weapons test is an essential component of clarifying military capabilities and completing scientific research, India would technically be able to rely upon this support to show that Mission Shakti is a passive military use of outer space. As a result, it would seem that no part of Article IV has been breached by India.

In addition to Article IV, some amount of regard must be had to Article IX of the Treaty:

 (a) State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.

As a result of this provision, States are allowed to request consultations if it believes that any activity or conduct of a State in outer space may have a harmful effect on its own space activity, or any harmful interference. This is more of an enabling provision allowing for international co-operation to prevent harmful activities from taking place in outer space.

In light of these two provisions, it appears that Mission Shakti does not fall foul of a strict reading of the Outer Space Treaty. Considering India’s capability and development of Anti-Satellite weaponry was public knowledge, and no States requested for consultation under Article IX – it seems likely that they agree that there was no possibility of “harmful interference” from the testing of India’s anti-satellite weapon.

There are no provisions in the Registration Convention, the Liability Convention, or the Rescue Agreement that are relevant to India’s test. Further, although the Moon agreement contains provisions on peaceful use, these are inapplicable owing to their limited application to the Moon and celestial bodies.

  • The United Nations Charter

As stated above, principles contained in the United Nations Charter apply to conduct in outer space as a consequence of Article III of the Outer Space Treaty. Article 2(4) of the UN Charter reads as follows:

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, or in any other manner inconsistent with the purposes of the United Nations.

Additionally, “aggression” has been condemned under international law, being defined under Article I of the Annex to General Assembly Resolution 3314 as under:

Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.

Explanatory note: In this Definition the term “State”: (a) Is used without prejudice to questions of recognition or to whether a State is a member of the United Nations; (b) Includes the concept of a “group of States” where appropriate.

Additional examples of acts of aggression are recognized under Article III of the same Annex.

India’s test does not fall directly within either of these definitions. All the acts referenced above necessarily require the use of force against another State. Considering India’s test was targeted against intercepting its own satellite, and not to destroy any other satellites, no other State’s exercise of quasi-territorial sovereignty over a space object has been impeded upon.

Even in the unlikely circumstance that an act of aggression can be deemed to occur where a State targets its own exercise of sovereignty, India’s testing of a weapon does not meet the threshold necessary to show a use of force, or aggression. This is because the testing of conventional weapons is not prohibited under international law. As a result, it is evident that India’s test of anti-satellite capability does not fall foul of any Charter obligations.

  • Customary International Law

In outer space, customary international law acquires greater significance since there is limited State practice, and States have not been able to agree on a comprehensive treaty regime – with the Moon Treaty, for example, receiving limited ratification. As a consequence, eminent jurists and highly qualified publicists have noted the possibility of obligations crystallizing into instant customary law. This doctrine eliminates the high threshold of uniform, consistent State practice that is associated with customary international law. Instead, it reduces that threshold, and suggests that actions reflecting the need of the hour can transcend into instant customary law. A commonly cited example is the Bush doctrine, which allowed the United States of America to enter into “preventative combat” in several Middle Eastern Nations.

The Space Debris Mitigation Guidelines (SDM Guidelines) were prepared by the Inter-Agency Space Debris Coordination Committee (IADC) and accepted by the United Nations Committee on the Peaceful Uses of Outer Space, and endorsed by the United Nations General Assembly in 2007. The Guidelines were prepared specifically because States recognized that creating a large amount of space debris would increase the density of objects in outer space and set off a series of cascading collisions (Kessler effect) in the Lower Earth Orbit. This is dangerous to space exploration specifically because a high density of space objects would render several space activities, including satellite communication impractical for several years. As a result, it was recognized that there was potential for debris creation to breach Article IX of the Outer Space Treaty by causing a “harmful interference” with the outer space environment. This mandated prompt response.

Since the SDM Guidelines were issued, 8 Intelsat, 6 Japanese, 10 U.S., 3 Russian and 22 satellites from other nations have been de-orbited in full compliance with the SDM Guidelines. Several technical standards adopted by States and intergovernmental alliances also show compliance with these Guidelines. The space community supports the obligatory nature of compliance with the SDM Guidelines, in the form of instant custom or customary international law obligations, although they are considered as “non-binding”.

China’s test of its anti-satellite weapon was highly criticized specifically because of the amount of debris it created, with the space debris from that collision nearly colliding with the International Space Station. Therefore, naturally, India’s test has raised similar questions about space debris.

This is where India’s test becomes slightly greyer.

Guideline 4 of the Space Debris Mitigation Guidelines reads as follows:

Guideline 4: Avoid intentional destruction and other harmful activities

Recognizing that an increased risk of collision could pose a threat to space operations, the intentional destruction of any on-orbit spacecraft and launch vehicle orbital stages or other harmful activities that generate long-lived debris should be avoided. When intentional break-ups are necessary, they should be conducted at sufficiently low altitudes to limit the orbital lifetime of resulting fragments.

Guideline 6 further provides:

Guideline 6: Limit the long-term presence of spacecraft and launch vehicle orbital stages in the low-Earth orbit (LEO) region after the end of their mission

Spacecraft and launch vehicle orbital stages that have terminated their operational phases in orbits that pass through the LEO region should be removed from orbit in a controlled fashion. If this is not possible, they should be disposed of in orbits that avoid their long-term presence in the LEO region

Both these Guidelines clearly indicate that intentional destruction and creation of debris is unlawful. However, Guideline 4 provides for States to conduct intentional destructions at sufficiently lower altitudes. This threshold has not been explored or fixed by States. However, during the time of China’s testing, States noted that the test had taken place at a “high altitude” and was dangerous for space debris.

India’s testing immediately created warnings of increased space debris, with the United States of America presently tracking 250 items of space debris, and expressing concern about the amount of debris created. However, India’s test was performed at a comparably lower altitude than the Chinese test – a sign of Indian conduct being more responsible than Chinese conduct.

This responsible conduct, although significant, is not exonerating.

Since Guideline 4 and 6 explicitly create obligations to prevent the generation of long-lived debris, India’s actions can be called into question once cataloguing of the generated debris is complete and an accurate time-estimate of when this debris will fall out of space is created. Moreover, the legality of India’s test is likely to be examined in the number of cascading collisions it further creates.

In response to these suggestions, India has stated as follows:

The test was done in the lower atmosphere to ensure that there is no space debris. Whatever debris that is generated will decay and fall back onto the earth within weeks.

This timeline is crucial for India to be exonerated from any breach of international obligations, and will be monitored closely by space-faring nations.

Conclusions

Under the present framework, it is clear that India’s Mission Shakti test does not breach any of its obligations under the Outer Space Treaty, or the United Nations Charter. However, whether or not the test breached SDM Guidelines is up for debate and likely to be concluded only where a thorough examination of India’s efforts to mitigate debris is undertaken.

However, it needs to be noted that India’s test is timely, and India seems to have benefitted from a present lacuna in legal framework.

It is intriguing that several States continue to hold the belief that no testing of weaponry should take place in outer space. The Group of 77 (which includes India), has, in the past, placed statements before the General Assembly that “the testing, stationing and deployment of any weapons in space should be banned”. Additionally, there is draft treaty text for the prohibition of anti-satellite weapons specifically.

In light of India’s test, the conversation around anti-satellite weapons is likely to be re-ignited. Whether States choose this opportunity to prohibit weaponry in outer space as a whole is something we must wait with bated breath to see. As a society, we’ve ravaged Earth with pollution and warfare, and the sustenance of future generations may well be decided by States response to such testing.

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Human Rights, India

V. Surendra Mohan v. State of Tamil Nadu: Calling the CRPD into Question

On January 22, 2019, the Supreme Court decided on disability rights in V. Surendra Mohan v. State of Tamil Nadu and Ors. In a shocking decision, the Court ruled that a visual impairment or hearing disability above 50% rendered an otherwise competent candidate unworthy of being a judge.

In brief, the facts of this challenge are as follows. The Tamil Nadu Public Service Commission (TNPSC) advertised certain posts for “civil judges”. This advertisement (notification) stated that candidates with visual/ hearing impairment were eligible, so long as their impairment was between 40-50%. Surendra Mohan, a visually impaired lawyer, was told that he was ineligible for the advertised post. Upon challenging this at the Madras High Court, he was permitted to sit the interview. But the court later ruled that he was ineligible to be a judge, as he suffered a 70% impairment. The Supreme Court endorsed this view on appeal.

In deciding the case, the Court formulated three issues:

(1) Whether the appellant who was suffering with disability of 70% (visual impairing) was eligible to participate in the selection as per notification dated 26.08.2014 of the Tamil Nadu Public Service Commission?
(2) Whether the condition of 40%-50% disability for partially blind and partially deaf categories of disabled persons is a valid condition?
(3) Whether the decision of the State Government vide letter dated 08.08.2014 providing that physically disabled persons that is partially deaf and partially blind to the extent of 40%-50% disability are alone eligible, is in breach of the provisions of 1995 Act ( Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) and deserves to be set aside?

Its analysis on issue (1) was grounded in fact. The Court explains that since the advertisement clearly mentioned that individuals with more that 40-50% disability would not be eligible for the post, Surendra Mohan was not eligible to participate in the selection process. This assessment satisfies the factual test the Court has to undertake.

Issues (2) and (3), however, raise legal concerns as to the validity of the notification and decision of the Government was correct. It is with the analysis hereunder that my problem lies. The Court appears to reason that since the Act defines a person with disability as being a person with not less than forty percent disability, the threshold is sufficient. This to me is fallacious, for that is merely the threshold for a person to be considered as a “person with disability”, and not sufficient to exclude individuals above this threshold from claiming “partial disability”. The Court notes, rather discouragingly, that:

Partially blind and partially deaf disability of 40%-50% has been pegged to achieve the object of appointing such partially blind and partially deaf physically disabled persons who are able to perform the duties of Civil Judge(Junior Division).

This attempts to break arbitrariness by creating a nexus between the physical requirements of judicial duty, and partial blindness or deafness. While arguments on intelligible differentia and arbitrariness can be advanced to argue unconstitutionality, I propose that this decision runs contrary to international legal rights conferred upon disabled persons, and consequently, is a breach of international obligations.

India has ratified the Convention on the Rights of Persons with Disabilities (“the Convention”), a human rights treaty which governs and protects the rights of persons with disabilities around the world. Article 4 of the Convention lists out general obligations of States Parties. As with any enumeration of obligations within human rights treaties, the Convention moves from the general to the specific, identifying key actors on whom special check must be kept. All public authorities and institutions fall within this category.

Article 5 of the Convention contains the core preserve of the same, creating equality and non-discrimination rights. Article 27 is the more specific Article, focusing on work and employment. We have guidance to help us understand the nature of these obligations in the form of the jurisprudence of the Committee on the Rights of Persons with Disabilities (“the CRPD”), as established by the Optional Protocol to the Treaty, and General Comments published by the same body.

General Comment No. 6 gives clarity on the right of non-discrimination. It explains that the human rights construction of disability is distinct from the medical construction of disability. In the medical approach, an individual is reduced to their disability. The human rights model argues and sustains the fact that disability is merely one layer of a person’s identity. It is this premise on which the right to equality must be granted. Specifically, in paragraph 20, the CRPD explains what discrimination on the basis of disability is – in the fact that it could be on the basis of different disabilities as well. The General Comment then explains the nexus between Article 5 and Article 27, highlighting that disability ought not to be a basis of exclusion from employment opportunities.

In Communication No. 9/2012, the CRPD was faced with an individual who suffered 50 percent physical impairment. This individual appeared for competitive examinations and ranked highly, but was not recruited, owing to limitations of slots/qualifications imposed on open vacancies. In that communication, the CRPD noted that no violation of Article 27 existed, specifically observing that the Council of State had assessed the individual’s application on merit, and his non-fulfillment of additional criterion was not an arbitrary imposition. The State, in that case, Italy, had done enough to “reasonably accommodate” the candidate.

On the contrary, a more guiding Communication is Communication No. 5/2011, which found a violation of Article 5 and Article 27, where the Social Insurance Agency, a public organization discarded the application of an individual with severe visual impairment. The CRPD notes a few important things. First, that States Parties have an obligation to create “reasonable accommodation” in the labour market for persons with disabilities. Second, that although State Parties enjoy a margin of appreciation with this obligation, there is a positive obligation to take steps toward such accommodation. Third, that no arbitrary distinction or artificial classification can be made between persons with disabilities and persons without disabilities in assessing applications.

These three observations are crucial and can be applied to the Supreme Court’s reasoning (or lack thereof) to reveal a clear breach of obligations. The advertisement for posts of “civil judge” arguably indicates that an attempt to make “reasonable accommodation” has been made. However, discarding Surendra Mohan’s application clearly shows that this accommodation was not actually considered. Relying on Communication No.5/2011, there is a requirement to see how the role can be changed to suit the author’s disability – and this is something that has not been done, in light of Surendra Mohan’s heightened visual impairment. A further breach can clearly be seen since the Supreme Court does not reason or examine the merits of creating a distinction between an individual who has a 40%-50% disability and a 70% disability. This falls foul of India’s obligations under the Convention.

State Practice, in fact, indicates the arbitrariness of the distinction for the post of a civil judge. Judge Zak Yacoob sat at the Constitutional Court in South Africa despite being affected by meningitis. Judge David S. Tatel sits on the United States Court of Appeals for the District of Columbia Circuit and Judge David M. Szumowski was a judge for the Superior Court of San Diego County in California, despite being 100% blind. This clearly shows that a distinction on partial and permanent blindness or any spectrum across the visual impairment scale is rather artificial – as it does not prevent an individual from performing their role as a judge.

Unfortunately, since India has not signed the Optional Protocol, the applicant has no further recourse with the CRPD. One can only hope that circumstances change in the future, as at present, the Supreme Court has denied a qualified applicant an opportunity to serve the country, and forgotten about its obligations toward the international community.

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Uncategorized

Understanding Why

This blog will attempt to examine the attitude of Courts around the world toward utilizing international law as an interpretative guideline to their Constitution, and several domestic legislations. There will also be engagement with the attitude of Governments toward international law – although that is likely to be lesser, given its high visibility in the news.

This post uses the example of India to articulate the premises on which this blog is based. First, that there is little clarity on whether States are actually monist or dualist. This clarity is essential for the international community – for it helps States to reflect on the law-making process at the global level. Certain changes in process, and in outcome, might be necessary. Those can only be implemented where domestic structures provide clarity on how international law is treated. Second, that Courts specifically have a vital role in formulating consistent policy to this effect – however, at present, fail to do so.  Third, that there is a need for better engagement with international law by Courts.

It is first beneficial to look at the relationship between domestic and international law-making/governance.  A great deal of literature has been devoted to the same, concretizing in two primary theories: monism, and dualism.

Monists argue, inter alia, that owing to a State’s active participation is rule-making and treaty formulation, the State need not take any additional acts to incorporate international law into the domestic legal regime. Dualists, however, argue, that owing to principles of State sovereignty, and considering the distinct spheres in which domestic law and international law are created, States have to undertake acts which adopt international legal norms into domestic law.

Although States are often classified into monist States and dualist States for simplicity of understanding, the reality is far removed from the same. States often have distinct mechanisms for the adoption of international law – a distinction is often created on the basis of how an international obligation is created, whether by treaty, or by custom. For example, in the United States of America, the rather complicated relationship between the two is as follows:

  1. Self-executing treaties are automatically equal to a federal statute, inferior to the Constitution, and superior to U.S. State Law
  2. Non self-executing treaties require legislation which implement them
  3. Customary international law has ambiguous status – some Court decisions treat them as part of domestic law, but where domestic legislation conflicts with customary international law, domestic legislation is considered supreme.

The existence of a differentiating treatment of sources of international law essentially allows the United States of America to create domestic legislation for itself where it does not wish to follow a rule of customary international law. Put more simply, it allows for an “opt-out” from rules which are of a customary nature. The USA, therefore, cannot definitively be classified as being “monist” or “dualist”.

This confusion about status is also true of India. Clarity about India’s relationship with international law could have been gleaned by consistency in its treatment. However, this appears to be absent.

Part IV of the Constitution of India lays out Directive Principles of State Policy – overarching goals of the State. Article 51, contained in this Part, articulates four principle goals the State shall endeavor to carry out: (i) promotion of international peace and security, (ii) maintaining just and honourable relations between nations, (iii) fostering respect for international law and treaty obligations, and (iv) encouraging the settlement of international disputes by arbitration. While the principal obligation to execute these objectives lays with the Executive and the Legislature, the Judiciary is tasked with fostering respect for international laws.

In some cases, the legislature enacts statutes in furtherance of treaties – this is true of several labour laws and environmental laws. In others, the legislature chooses to ignore internationally agreed upon yardsticks.

Where the legislature chooses to ignore international law, the burden of “respecting obligations” falls upon the Courts. However, Courts in India rarely uses international law. Where it does, it rarely engages with pertinent questions such as “why is international law relevant”, and “how can international law be enforced”.

Numerous examples present themselves. The application of ILO Convention 107 in Narmada Bachao Andolan v. Union of India, is a particular failure, considering ILO Convention 169 – on the same subject matter (indigenous population) was in the works, and subsequently implemented. Another example is G. Sundarrajan v. Union of India, where the Court referred to and relied on the NPT, and various Conventions on Nuclear Liability, although India is neither party to these Conventions, nor is their customary status clear. In Justice (Retd.) K.S. Puttuswamy v. Union of India, the treatment of international law was merely an exposition of its existence. Several parts of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act might fail international yardsticks – but the Court refused to use the opportunity to engage with the same.

This is perhaps the best juncture to ask the question: should Courts in India engage with international law better?

To me, the answer is yes.

There is clear guidance within the Constitution. Article 51 requires “respect for international law and treaty obligations”. This can only be achieved where international obligations the State has consented to are actually considered by the Courts – even if it is to supplement its own reasoning. This duty to consider international law is supported by the fact that international law cannot function effectively if States do not obey it. Furthermore, in respectfully considering international norms – and comparative practices, India plays a more active role in the formation of rules of customary law. Courts’ treatment of international law is perhaps more crucial where India has objected to rules of customary law – it offers another opportunity to object to the crystallization of such a rule, excluding India from the purview of its application.

This engagement is likely to lead to more consistent policy – and might provide a definite answer to whether India is “monist” or “dualist”.

This is true for Courts in all nations. Till Courts begin to engage with international law more consistently, it is impossible for the international community to reflect on whether international law is effectively enforced.

Therefore, it becomes important to undertake a study of how Courts treat international law – do they use it where the opportunity is available, or do they ignore international law entirely?

Such a study will surely help to answer more broad, principled questions such as whether public international law is still relevant, and what changes need to be made in the structure of rule-formation to better the world as a whole.

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