This article is authored by Adhiraj Lath and Shubham Gandhi, who are Fourth Year Students of Law at National Law University, Jabalpur.
Judge Peter Tomka recently resigned from the tribunal which was hearing a case brought before ICSID by a Japanese investor, Macro Trading Co., against China under the China-Japan BIT. This incident reignited a controversial debate against so-called “moonlighting” in international arbitration. To explain the concept briefly, when the International Court of Justice (ICJ) judges also act as arbitrators in investment treaty arbitration (ITA or ISDS), this “double-hatting” is referred to as moonlighting.
Such moonlighting is often criticised for the reason that it risks a perception as to a lack of independence and impartiality of ICJ judges. Such arbitral work may, for instance, be seen as a step towards cementing and establishing the position of the judge as a full-time arbitrator following their retirement from the ICJ. Moreover, the conflict of interest potentially compromises the legitimacy of the ICJ “as the highest authority on public international law”.
Although the ICJ has taken steps to prohibit such moonlighting, Judge Tomka’s controversial appointment to begin with, and subsequent resignation, warrants revisiting the controversy surrounding this phenomenon.
Illustrative Legitimacy Concerns when ICJ Judges Adjudicate as Arbitrators
In 2017, the International Institute of Sustainable Development (IISD) released a groundbreaking statistical commentary on the effect of moonlighting vis-á-vis the “reputation” of ICJ and its eventual impact on ISDS. This study emphatically highlighted the pernicious impact of the phenomenon on both adjudicatory venues by, among other things, highlighting the potential incompatibilities between such double-hatting and the fundamental tenets of judicial propriety.
ICJ judges and ITA arbitrators are to remain independent and impartial. In that light, it must be remembered that ICJ judges are offered the security of tenure with a fixed salary. While acting as an arbitrator, the judge will be earning an additional fee, besides existing fixed remuneration. The judge, now acting as an arbitrator, is also required to allocate time between their workloads. Finally, and more importantly perhaps, there may be a potential conflict of interests embedded in the incentivization to act in a manner that lines up future appointments.
Another major issue which stems from moonlighting is the undesirable influence of overlapping issues in ICJ cases and concurrent ISDS proceedings and the impact it can have on ICJ rulings. The IISD report highlights that approximately 10% of all known investor-state cases had featured an ICJ judge or judges on the tribunal and ICJ judges have acted as arbitrators in more than 90 investor-State disputes. Underlying this double-hatting is the perception that issues of analogous nature before the same judge can potentially influence rulings in another case. Professor Gus Van Harten succinctly encapsulated this concern by commenting that ICJ “judges must strive to protect the Court from appearances of bias tied to investment treaties.”
On the other hand, it has been argued that moonlighting allows ITA to benefit from top-notch international law expertise, bolsters the cogency of arbitral reasoning in harmony with international law, and thereby prevents its fragmentation. Thus, in a positive way, ICJ judges acting as arbitrators may facilitate systemic integration by enabling interaction between varying legal regimes.
A Contextual Primer on Moonlighting
Since its inception, the ICJ statute clearly mandates, pursuant to Article 16, that “no member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature.” The issue regarding the extent of applicability of Article 16 came up in 1995. In the report dated 2 November 1995, the UN Security-General clarified that Article 16 does contain a prohibition, stating that “holding a position in a commercial concern, engaging in the practice of law, maintaining membership in a law firm or rendering legal or expert opinions” was prohibited under the Article.
However, while answering this contentious question, the Court clarified that “occasional appointments as arbitrators” will fall outside the scope of Article 16, citing a traditional practice of the Permanent Court of International Justice (PCIJ), the precursor to the ICJ. However, this response prompted another report by the Advisory Committee on Administrative and Budgetary Questions which questioned these outside remunerated activities engaged in by ICJ judges, and highlighted the need for disclosure requirements and guidelines for moonlighting.
In response to this, the Court elucidated in its Annual Report 1995-1996 that moonlighting is in line with the ICJ statute and reiterated that it was a long-standing practice endorsed from the origins of the PCIJ. While closing this debate, the Court suggested that judges acting as arbitrators would collectively benefit all concerned institutions in the development of international law so as not to be a cause of concern. This position remained settled until the IISD report in 2017 and related discussions reignited this debate once again.
As a result of the stir against moonlighting, in 2018, Judge Abdulqawi Yusuf, President of ICJ at the time, addressed this issue in the UN General Assembly by announcing that, due to the mounting workload of the court, “the members of court have decided that they will not accept to participate in international arbitration. In particular in investor-State arbitration or in commercial arbitration.” This rationale was recapitulated in the Obligation to Negotiate Access to the Pacific Ocean case. Further, he mentioned that the Court in ‘exceptional’ circumstances may permit its members to participate in inter-state arbitrations and declared that the Court was in the process of finalizing guidelines on moonlighting.
In a more recent speech of 2020, Yusuf J. again reiterated this decision, stating that “the Court has clarified that invitations to visit from States that have cases pending before it may not be accepted by any of its members” Following this, the guidelines on the extrajudicial activities of its members were made public. These guidelines prohibit members from participating in arbitration proceedings and only permit appointments made to investor-state arbitrations, consistent with Judge Yusuf’s 2018 speech.
Curiously, these two speeches made by the President do not assert that moonlighting is against Article 16 of the ICJ Statute. This paves the way for the possibility that limiting appointments is to ensure greater efficiency of the ICJ. This construction of Article 16 implies that prohibiting moonlighting of ICJ judges is a temporary measure, which is subject to the workload of the Court. This possibly keeps the door ajar for moonlighting to resume in the future, when the caseload of the Court diminishes.
Consequences of the New Guidelines on International Law
To counter the growing legitimacy concerns of moonlighting, the guidelines restricting appointments to ISDS tribunals will inevitably put an end to the perceived lack of independence, impartiality and incentivization for future appointments. From a broader prospect of maintaining ICJ’s integrity as a preeminent authority in public international law and restoring the legitimacy of ISDS, the current guidelines are an appropriate measure to ensure that the adjudicator’s role in both the systems remains unsullied and ultimately, to restore faith in ICJ judges and ITA arbitrators alike.
Seemingly, the appointments permitted solely to investor-state arbitrations under the new guidelines appear to be compatible with the existent contentious jurisdiction between states of the ICJ. Moreover, the guidelines permit only one appointment at a time. Interestingly, the guidelines mention that judges “may” only participate in one investor-state arbitration at a time. This allows for the possibility of appointments being permitted to more than one investor-state arbitrations.
Conflicts of interest and emitting concerns such as perceived lack of independence and impartiality and economic incentivization are inherently precluded when Judges cannot sit as arbitrators between investors and States. Further, the creation of a panel of judges who will authorize any appointment to a tribunal under the new guidelines. Accordingly, the guidelines provide a mechanism for disclosure obligations to the Court which allay fears of opacity and allow for a potential conflict of interest scrutiny of prospective appointments.
Undoubtedly, the prohibition of moonlighting will also help the ICJ to direct its focus to effectively deciding the cases before it. In particular, time-sensitive matters requiring provisional measures are greatly consequential, requiring urgent attention of the Court. It was evident in the recent cases before the ICJ, in particular, the Jadhav and Iran v. USA cases that the time factor was exigent to the situation.
The guidelines aim for absolute precedence of judicial activities of the ICJ. In consequence, judges must decline appointments by states with cases pending before the Court even if there is no “substantial interference” with the work of the Court. Appointments made prior to the framing of these guidelines remain unaffected. The venerated role of ICJ judges as preeminent authorities of international law, should, most of all, be their inherent motivation in refraining from moonlighting.
Allowing ICJ judges to arbitrate may potentially mitigate fragmentation, maintain consistency of reasoning in the system and enhance systemic integration. However, it is evident that the adverse effects of moonlighting tend to erode the legitimacy of both the ICJ and ISDS. Baleful perceptions of conflict of interests, issue conflicts, economic incentivization for switching workload, cementing positions for future appointments, among other issues, are grave concerns for any adjudicatory system. Consequently, it becomes imperative that any impartial and independent adjudicatory system is infallible to these questions. The new ICJ guidelines attempt to preempt just that.
The Amnesty Exception: The Oscillating Stance between Legality and Illegality in International JurisprudenceRead Now
This article is authored by Diya Rajesh Kumar Vaya, a Third Year Student of B.S.W. LL.B. at Gujarat National Law University, Gandhinagar.
Peace and justice are the two important considerations that arise in a post-conflict society. However, they are often seen as incompatible goals. The paradoxical issue of peace vs justice has been omnipresent in the international law discourse. This issue has become even more complex with the contemporary application of amnesties for those involved in human rights abuses, including crimes against humanity, as in the case of Libyan Saif-Al-Islam Gadaffi. While there exists a presumptive general ban on blanket amnesties, the legality of situation-specific and conditional amnesty vis-a-vis international law is yet to be conclusively determined. Some scholars proclaim that there exists a moral and legal duty to prosecute perpetrators of grave international crimes to ensure justice and deter impunity. However, others point out the benefits of a conditional amnesty to thwart the danger of potentially destabilizing peaceful restructuring and reconciliation of the society by insisting on prosecution.
In such an ambiguous situation, it is critical to determine the legality and validity of a national amnesty for those committing human rights abuses, under international law. This essay aims to, first, decode the existing jurisprudence surrounding the legality of an amnesty under international law, second, examine the decision of the ICC Appeals Chamber in the 2020 Gaddafi Admissibility Decision and third, recommend a holistic criterion to determine whether an amnesty is acceptable under international law in a particular case.
An amnesty is a sovereign act of oblivion for past acts, granted to individuals guilty of crime. It may be based on certain conditions and a reassurance that they will not repeat the same acts. Those in favour argue that it is a necessary restorative measure to ensure that the society peacefully undergoes reconciliation and is protected from social and political isolation. Those who are against it argue that the grant of an amnesty brings about impunity, unaccountability, allows criminals to easily escape lability, and prevents victims from achieving true justice. Hence, the question of the grant and use of an amnesty, to allow the perpetrators of heinous crimes to escape criminal liability, has gained a controversial reputation.
Ascertaining the international legal status of amnesties is a complicated procedure due to two main reasons: first, there is no consensus on the treatment of amnesties under international law. Second, while international treaties mention an explicit duty to prosecute, there is neither mention of the validity, legality or effect of the grant of an amnesty to such violators, nor an explicit ban on amnesty.
Decoding the International Jurisprudence on the Legality of Amnesties
The oscillating stance of international law on the issue of amnesties is a matter of concern. While it is argued that the jurisprudence on this issue is developing, presently the ambiguity is blinding. Various treaties such as the Geneva Conventions 1949, Rome Statute of the ICC, Genocide and Torture Conventions explicitly provide for a duty to prosecute crime of a grave nature which includes "grave breaches," crimes against humanity, genocide, crimes of aggression, war crimes, torture etc. Yet, some commentators argue that an amnesty exception does exist within the Rome Statute based on an interpretation of its provisions. First, Article 17(1)(b), provides that in situations wherein the State having jurisdiction decides not to prosecute the accused, the ICC will declare a case inadmissible. However, if the State is unwilling or unable the ICC may exercise its jurisdiction. Second, Article 53(2)(c), which allows the Prosecutor to refuse prosecution where, “a prosecution is not in the interests of justice,” Third, on the basis of Article 16 which gives the Security Council discretionary power to defer proceedings. Fourth, under Article 15, which gives the Prosecutor discretionary powers to decline to prosecute proprio moto. Moreover, Article 6(5) of Additional Protocol II is often invoked to justify the grant of amnesties for war crimes. Several courts have used this provision to support their findings that amnesties are valid under international law, such as the AZAPO case. However, the ICRC interpretation of Article 6(5) states that this provision only provides for "combatant immunity," and cannot be applied to those who violate international law. Hence, it is clear that while treaty-based law places an obligation to prosecute upon States, there is no explicit preclusion of amnesties to alleged perpetrators.
The Inter-American Human Rights System has produced comparatively detailed amnesty case law due to the frequent use of amnesties in South America. These judgments conclude that amnesties that prevent investigation and prosecution of international crimes, such as war crimes, crimes against humanity, including serious human rights violations are impermissible. The IACHR, has explicitly determined that blanket amnesties granted by Chile, Peru, Argentina and El Salvador were incompatible with the rights under the ACHR, led to a complete derogation of human rights and the principles of natural justice. Further, The ICTY pointed out the frivolity of States adopting national measures that absolve its perpetrators from prosecution through an amnesty law for jus cogens norms. It reflected the international consensus against amnesties by stating that amnesties are generally opposed to the duty of States to investigate, to protect and guarantee non-repetition. There have been various other instances where the grant of a national blanket amnesty has been declared illegal.
However, there have also been instances where a qualified or conditional amnesty has been appreciated and accepted under international law. The prime example of an amnesty that was deemed acceptable was in the case of South Africa. The South African Constitutional Court upheld the legality of the amnesty granted. The main argument was that a Truth and Reconciliation Commission had been appointed to unearth the truth, the amnesty was conditional and not granted to all, it was granted on individual case-to-case basis and efforts were made to rehabilitate the victims. Recently, in 2014, the Grand Chamber of the European Court of Human Rights paved way for the possibility of the acceptance of an amnesty which includes compensation for the victims or some reconciliation. The International Law Commission’s Special Rapporteur on Crimes against Humanity also established that national amnesty laws should be be judged on a case by case basis.
Hence, there is no uniformity in the jurisprudence that has developed over the years. There exists acute confusion and ambiguity in the legal treatment of amnesties under international law. However, while there is no explicit general ban, blanket amnesties are generally considered unacceptable. Amnesties that are unconditional and only enacted as a "sham trial" will not be accepted. A conditional amnesty may be accepted, based on the circumstances and conditions of its grant.
Examining the Legality of the Amnesty Granted in the Case of Sail-Al-Islam Gaddafi
Recently, the case against Saif-Al-Islam Gaddafi was declared admissable by the ICC. While the Court did not rule on the legality of the national amnesty, it reversed the holding by the Pre-Trial Chamber that the grant of amnesty for crimes against humanity is incompatible with international law. There is clear reluctance on part of the ICC to place an explicit ban on amnesties.
While the Appeals Chamber did not rule on the legality of the amnesty law, the Prosecutor's Office in its response argued that the Libyan national amnesty law was invalid on various grounds. They argued that, first, the law did not exclude any category of perpetrators and included even high office holders or those with high responsibility who led the crimes. Second, the law allows exclusion from liability in international crimes, which is against the international legal consensus developed over the years. Third, the law didn’t provide for any effective means of accountability or reparations to the victims. Fourth, while the law does provide for the grant of amnesty through a reasoned judicial decision, it does not provide for transparency of the procedure. Fifth, there is no evidence that Gaddafi contributed to any peace-building efforts or that the grant of amnesty to him will contribute to any peace or reconciliation.
The reluctance of the ICC to conclusively rule on the subject of amnesties is premised on the argument that a conclusive rule can cause future complications. However, the Prosecution's arguments in this case show a growing trend towards the acceptance of a conditional amnesty that is truly involved in peaceful rehabilitative efforts. A very interesting aspect of these amnesties is the focus on victims. While criminal prosecution is sidelined, justice is not. An amnesty, to be legal, must provide for rehabilitation of individual victims and involve a judicially transparent procedure. These aspects definitely make conditional amnesties a worthy option vis-a-vis criminal prosecution.
Recommended Criteria to Determine the Legality of an Amnesty in International Law
There are certain guidelines and uniform practice that have been adopted in several cases, as well as certain fundamental positions of law have been reiterated time and again. This allows us to make certain strong inferences. The most important guidelines on amnesties are the Belfast Guidelines, which allow us to create a perspective of valid and legal amnesties as opposed to illegal and blanket amnesties. These guidelines have also been cited by the ICC.
Based on the jurisprudence that has developed, it is clear that for an amnesty to be valid under International Law, certain pre-conditions need to be fulfilled:
First, an amnesty must achieve objective of establishment of peace and initiating or furthering reconciliation. There is evidence that amnesty and truth and reconciliation procedure of South Africa, though criticized, prevented a civil war. The UN has also supported amnesty agreements that covered international crimes that were necessary to end military stand-offs in Haiti. Belfast Guideline 4A also states that for the pursuit of peace, accountability, disarmament and certain objectives, an amnesty can be given.
Second, the amnesty must be given along with other measures of eliciting accountability such as truth commissions, investigatory bodies, etc. This idea of justice implies that a conditional amnesty with an effective truth commission could bring justice. United Nations, has worked for establishing truth commissions as a mechanism complementary to criminal trials, with a limited amnesty to those “least responsible” for perpetrating the least serious crimes in post conflict Cambodia, Iraq, Afghanistan, etc. Belfast Guideline 5 reiterates the importance of accountability measures.
Third, Blanket amnesties should be prohibited entirely. Amnesties negotiated between incoming and outgoing regimes to facilitate transition, with proper legal body making decisions on grant of amnesty should be created. Amnesties such as those granted in Spain and Argentina will not be allowed. Belfast Guideline 14 reiterates the same.
Fourth, amnesties should be applicable only to subordinates, and NOT that those “most responsible” or high-level authorities responsible for perpetrating the crime. The grant of amnesty to Gaddafi, Pinochet, Sary, and other leaders who are the main powerful perpetrators is wrong. This exemplary approach was adopted in Cambodia as well as Sierra Leone, reiterated in Belfast Guideline 8.
Fifth, amnesty should not be granted for jus cogens crimes such as torture, crimes against humanity, genocide, grave breaches of Geneva Conventions, etc. Guideline 7 of the Belfast Guidelines requires exclusion of serious international crimes from the grant of an amnesty.
Sixth, amnesty should be granted only upon the fulfillment of pre-conditions such as surrendering, participation in restoration efforts to victims, truth telling, and a promise to prevent conduction of such crimes in the future. Belfast Guideline 11 and 12 state the same.
International law as a legal regime needs to come to terms with existent political realities in order to remain relevant. These guidelines can serve as a framework in determining the legality of an amnesty granted in the present and the future.
A post-conflict state is often caught in an extremely vulnerable position, wherein it may be forced to grant amnesty in exchange for peace and end of violence as it transpired in South Africa. It is not pragmatic to pit peace against justice. The most cogent and practical manner to achieve the equilibrium between the two, is through the grant of a conditional amnesty that is in accordance with International Law. There is no doubt about the ambiguity surrounding the status of amnesties under international law. However, it is clear through the jurisprudence developed over the years, that a conditional amnesty, with measures of victim rehabilitation and accountability granted after a transparent judicial process is a worthy and credible way out of violence and war.
This article is authored by Hriti Parekh, a Third Year student of Law at Hidayatullah National Law University, Raipur, India.
“International law today forms part of a legal hierarchy embracing a number of normative systems united by their ultimate dependence on those functional norms which may be well termed the international Constitution. It is this Constitution that the initial hypothesis or Ursprungsnorm of both international law and municipal law is to be sought.”
- J.G. Starke
International law makes no specific requirements for fulfilling obligations to integrate conventions or tradition into domestic legal frameworks. Furthermore, the mechanism of integrating international law into domestic law is not governed by international law. There is no diplomatic body in charge of enforcing the law. States incorporate foreign law into their domestic legal systems in a variety of ways, depending on domestic law, such as statutory requirements and custom. However, before international tribunals, the state cannot disregard its commitments under international law. Even where international law disagrees with the parties' domestic rules, international tribunals can give effect to international law. If domestic legislation disagrees with the parties' treaty agreements, even the constitutions of the parties are ignored. This article examines the general position of international law and domestic legal orders on the impact of international law in the Indian domestic legal system, as well as the method of implementing international law in India in the light of the seminal case of Jeeja Ghosh vs. Union of India.
2. Jeeja Ghosh vs. Union of India – A Critical analysis
A Brief Summary of the Facts
This case stemmed from a public interest lawsuit brought after Ms. Jeeja Ghosh, a disabled rights activist, was pulled from a Spice Jet Ltd plane at the Kolkata airport by its crew because the captain believed she was a danger to the aircraft. The Supreme Court ordered Spice Jet Ltd. to pay Ms. Ghosh Rs. 10 lakh in damages and advised authorities to amend air transport laws to prohibit discrimination against disabled people in airports and on planes.
The court also pointed to international law in drawing this decision, emphasizing the interests of people with disabilities. For instance, the “Vienna Convention on the Law of Treaties, 1963” prescribes India's internal laws to conform with foreign agreements, according to paragraph 13 of the judgment. A “State group... may not invoke the provisions of its internal law as justification for its failure to perform a treaty,” according to Article 27.
The Paradox between International Law and Domestic Law – An analysis of the Judgement
The “Vienna Convention on the Law of Treaties” (VCLT) was signed in 1969 and came into effect in 1980, so the court's reference to 1963 is puzzling. Regardless, the first sentence of para 13 appears to be an expression of the international law maxim of pacta sunt servanda. According to this premise, enshrined in Article 26 of the VCLT, any treaty ratified by a nation binds it, and treaty obligations must be fulfilled in good faith by the country.
By ensuring that the country's domestic rules are compliant with its treaty commitments is one way to uphold treaty obligations. The first sentence of paragraph 13 of the judgment reflects this feature. If this is the case, one might ask why, in the same para, the second sentence references Article 27 rather than Article 26. It seems that the court is defending its application of the pacta sunt servanda principle by citing Article 27 of the VCLT (which prohibits the use of domestic law as an excuse for international law violations), although it should have quoted Article 26.
The phrasing, if anything, demonstrates that the Indian Supreme Court also lacks full understanding on the essence of international law and its connection to India's domestic legal framework. As a result, a better interpretation of international law and how it interacts with domestic law is important. Unlike in other nations, where international law is considered part of the law of the land even though it has not been transformed into national law (i.e. the concept of monism), “international law does not become binding under the Indian constitution unless appropriate domestic legislation is passed to give substance to it” (as we have already observed).
Many concerns have also been raised by the Supreme Court's incorporation of International Law into the municipal system, which can be interpreted as “creeping monism”, which may obscure the line between monism and dualism, potentially limiting parliament's ability to implement laws.
“Creeping Monism” – A Cause for Concern?
According to Melissa A. Waters, an expert in International law, “Many common law judges, however, are eroding the traditional dualist approach as part of a phenomenon that I call creeping monism - that is, a gradual shift in judicial orientation toward a more flexible interpretive approach to unincorporated human rights treaties. No longer do they treat unincorporated human rights treaties as having no domestic legal effect. Instead, they are developing a wide range of interpretive incorporation techniques that enable them to utilize treaties in their work despite the absence of implementing legislation giving formal domestic legal effect to treaties.” 
A judicial transition toward monism does raise questions about legitimacy. First, while conventional conceptions of authority and jurisdiction may be changing, this does not imply that traditional common law dualism's philosophical foundations have entirely eroded. Indeed, in a world where jurisdictional borders are becoming increasingly hazy, distinctions between the “national” and the “international” become much more relevant.
Roger Alford has warned of the pitfalls of a “international counter majoritarian difficulty” when domestic courts use international legislation to declare legislative actions unconstitutional, potentially overruling the will of the people as articulated by the legislature.
3. Varying Approaches of the Indian Courts – Case law based analysis
The dualist approach of our India Legal System is observed in the following important cases:
In “State of West Bengal v. Kesoram Industries,” the Supreme Court reaffirmed India's “doctrine of dualism,” stating that “a treaty entered into by India cannot become law of the land...unless Parliament passes a law as necessary under Article 253.”
In the case of J.G. Verghese v. Bank of Cochin, the Indian Supreme Court distinguished between treaty law and customary international law. The court stated that only treaty law would require the Indian legislature to pass laws in order to be enforced. The court held that, as far as customary law is concerned, courts can be bound by it even before the legislature has made the requisite amendments to Indian law.
In the case of “National Legal Services Authority v. Union of India,” the court stated: “If the Indian parliament passes laws that conflict with international law, Indian courts are obligated to apply Indian law rather than international law. In the absence of laws to the contrary, municipal courts in India will respect international law.”
In “Krishna Sharma v. State of West Bengal,” the Calcutta High Court stated that where there is a conflict between international and domestic law, courts should attempt to harmoniously construct the two. In addition, courts must examine the text and meanings of international instruments including treaties, conventions, and declarations.
In Vishakha vs. State of Rajasthan, it was observed that “regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law”.
However, In cases like “G Sundarrajan v Union of India” (2013), the Supreme Court has resorted to international conventions that are compliant with Indian law but that India has not ratified.
The most recent case was the WTO Solar Panels Case against the United States where India argued that “legislative action to implement a foreign instrument is expected only where there is conflicting domestic law”, citing its own Supreme Court jurisprudence. As a result, “even though there is no authorizing domestic legislation, foreign instruments that are compliant with domestic law become part of the law of the country.” The WTO Appellate Body, however, rejected India's claim, holding that applying international law to read India's domestic laws would not imply that these international instruments have “direct effect” in the Indian legal system.
4. Proposed Changes to the Order
The author proposes a normative framework based on the historical dualism/monism dichotomy to balance the conflicting questions posed by the interpretive integration trend and its weakening of strict common law dualism. Although common law courts are not required to follow a rigid dualist approach to international law, they should not completely abandon it. Instead, they should take a “dualist in orientation, monist in technique” approach to their practice, in which they strive to incorporate the best of monist-oriented interpretive approaches while staying true to their historical dualist origins.
In the light of the same, and taking all the previously discussed cases into account, the order of the SC in this case could have been differently written, in the following manner:
5. The way forward
Domestic rules take precedence over international laws under the Constitution. Any international convention that is consistent with the fundamental rights and in accordance with its spirit must be read into those provisions in order to expand their scope and substance and to support the Constitution’s purpose. Ignoring international law is not the answer; amending the Constitution to make international law more effective is the answer, and that should happen through the legislature which is the supreme law-making body of the nation.
The objective should be to provide an evaluation process that allows courts to grow into their emerging positions as mediators between domestic and international legal regimes. Domestic courts will, in the author’s opinion, play a greater mediating role in the future. However, the mediating position must be established with considerable caution and consideration to questions about democratic legitimacy. One way is the domestic value structure proposed throughout this essay, which encourages courts to remain essentially dualist in orientation (and thus firmly embedded in the domestic polity), while also allowing them to consider at least certain limited uses of treaties in interpreting domestic law, making them monist in technique.
J.G. Starke, Monism and Dualism in the Theory of International law, 17 Brit.YB. Int'l. L. 66 (1936) at p. 81.
Sunil Kumar Agarwal, Implementation of International Law in India: Role of Judiciary, DEAN MAXWELL & ISLE COHEN DOCTORAL SEMINAR IN INT'L L., MCGILL U., at 1.
V.K. AHUJA, PUBLIC INT'L L. 42 (2016).
(2016) 7 SCC 761
Is the Supreme Court Confused About the Application of International Law? The Wire, https://thewire.in/law/supreme-court-international-law (last visited Jun 12, 2021)
Vienna Convention on the law of treaties, 23 May 1969.
Supra note 5.
Melissa A. Waters, The Judicial Trend toward Interpretive Incorporation of Human Rights Treaties, 107 Columbia Law Review , 628–705 (2007)
Roger P. Alford, Misusing International Sources to Interpret the Constitution, 98 Am. J. Int'l L. 57, 58-62 (2004).
Appeal (civil) 1532 of 1993
1980 AIR 470
AIR 2014 SC 1863
AIR 1954 Cal 591
 AIR 1997 SC 3011
(2013) 6 SCC 620
India's Solar Panel Dispute: A Need To Look Within The Wire, https://thewire.in/energy/indias-solar-panel-dispute-a-need-to-look-within (last visited Apr 23, 2021)
Supra note 10.
Supra note 5.
Supra note 10.
This article is authored by Vaishnavi Chaudhry, a Third Year student of Law at Rajiv Gandhi National University of Law, Punjab.
In the past few years, there has been an increased focus on using digital open-source intelligence (OSINT) for investigating war crimes. This is primarily because OSINT has made it easier for human rights investigators to identify, analyse and corroborate the extent of human rights violations. Though social media platforms such as Facebook, YouTube, and Twitter etc are used as mediums to circulate evidence of human rights violations in the forms of images and videos, it has been quite difficult to use such evidence for legal purposes.
Against this background, it is critical to evaluate the role of open-source evidence from an international law and human rights perspective. In light of the same, this short essay will focus on the use of OSINT in conflict zones. It will also discuss the legal framework that has been laid down by the Berkeley Protocol on Digital Open-Source Investigation.
OSI has played a critical role in determining the extent of human rights violations across different conflict zones. Though it has been used as a source of evidence for a relatively short period of time, its contribution in international criminal investigations and human rights violations has been significant. OSINT has proved to be instrumental in conducting investigations because it allows investigators to access those conflict zones that they otherwise would not be able to access due to security, diplomatic or logistical factors. In addition, civilians are also made a part of the investigation as they become primary sources of such evidence. In order to understand the importance of OSINT in conflict zones, its use in the Syrian Conflict has been discussed below-
Open-Source Evidence and the Syrian Conflict
Since the Syrian conflict began in 2011, the government has actively tried to prevent human rights groups from entering the country to investigate the crimes that were being committed against its civilians. Against this background, Syrian citizens resorted to using social media so as to highlight the cruel treatment that was being meted out to them by the Assad led government. Human rights organisations have largely depended on digital documentation to investigate human rights violations in Syria. One example would be the use of open-source investigation to document the March 2017 chemical weapons strikes on Al-Lataminah in Syria. This investigation was conducted by UC Berkeley’s Human Rights Investigations Lab in collaboration with the Syrian Archive. The Syrian Archive has been actively working to collect evidence about the human rights violations taking place in Syria. It has collected several verified videos of the chemical weapons attack, thus, establishing Syria’s violation of international law.
It is important to note here that this use of digital technology has not just remained restricted to the Syrian Conflict. In 2017, a fact-finding commission was set up by the UN to investigate the large-scale human rights violations that were being committed against the Rohingya Muslims in the Rakhine State of Myanmar. However, the commission was denied permission to enter the country and subsequently, it had to rely upon digital OSINT to carry out its investigation. Similarly, open source investigation has been used in other conflict zones such as Libya, Cameroon and Yemen. These instances highlight the growing reliance of human rights groups on digital evidence. However, using such evidence to establish a state’s liability for perpetrating human rights atrocities against its citizens has proved to be difficult so far.
The release of the Berkeley Protocol on Digital Open Source Investigation is bound to change that. This manual has been prepared in collaboration with the United Nations Human Rights Office of High Commissioner with the view of utilizing open source intelligence with respect to investigating war crimes and other human rights violations in conflict zones. For the past few years, a need for such a protocol was felt due to the lack of any legal standard to determine the validity of social media evidence in legal proceedings before international organisations such as the International Criminal Court.
While there is a lack of jurisprudence surrounding the use of Open Source Evidence in International Criminal Trials, there are a few relevant cases on the issue such as the Ahmad Al Faqi Al Mahdi Case. In this case, the accused was a former member of an armed group called Ansar Dine. He was accused of having a hand in the destruction of nine mausoleums in Timbuktu. To prove his guilt, the OTP resorted to the use of open-source evidence that was collected in collaboration with open-source investigators and civil society groups. Open-source videos, photos and geospatial information were used to demonstrate the destruction that took place in Timbuktu before ICC judges.
This case is remarkable in the sense that it allowed the OTP to utilise OSI evidence that was sourced, authenticated and analysed in such a way that it allowed her to establish Al Mahdi’s guilt. However, in a large number of cases, the authentication or verification of the OSINT & its subsequent admissibility continues to remain a challenge. The Berkeley Protocol seeks to address this challenge.
Chapter III of the Berkeley Protocol
The introduction of the Berkeley protocol acknowledges the role played by technology and particularly social media in increasing the circulation of open-source data or evidence. Subsequently, it highlights the need for a comprehensive and universal guide for aiding international criminal and human rights investigators in their work. In other words, the protocol lays down a uniform set of standards for effective investigation of violation of international criminal law, international human rights law and international human rights law. This encompasses human rights violations and international criminal law violation such as war crimes, crimes against humanity, genocide etc.
Chapter III of the protocol lays down the legal framework pertaining to the process of open-source investigation. This chapter seeks to make sure that open-source investigators are aware of the legal framework that is applicable to their investigation. The rationale behind this is that investigations can be more successful if knowledge regarding the substantial laws and procedural laws across different jurisdictions is available to the investigators. Up until now, using open-source information in legal proceedings has proved to be a challenge. However, if the investigation is conducted in accordance with the rules of evidence of the relevant jurisdiction, then there is the possibility of evidence being far more admissible.
Part B of the chapter addresses the complex issue of jurisdiction and accountability. It stresses upon the importance of the investigator’s ability to identify the applicable jurisdiction and accountability mechanisms. It suggests that in case the OSI are unable to ascertain the jurisdiction and accountability mechanism, the evidence should be collected and safeguarded in such a manner that it can be used across a range of ‘potentially relevant jurisdictions’.
Part D of the chapter deals with the rules of evidence and procedure. This section highlights the duty of the investigators to make sure that the collected Open-Source Evidence is “admissible, relevant, reliable and probative” before international courts or tribunals. In any international criminal investigation, the required standard of proof is higher as compared to other investigations. This is to safeguard the accused’s right to due process and fair trial. In such a scenario, the threshold for admissibility of evidence is high and significant importance is attributed to the method of collection of evidence. Therefore, it suggests that open-source investigators should focus on ascertaining the veracity of open source evidence so as to prevent any probability of misinformation.
Part E of the chapter goes on to discuss the relevance of the right to privacy and data protection. The right to privacy is enshrined as a fundamental human right in various human rights conventions such as the European Convention on Human Rights, American Convention on Human Rights etc. In light of the same, the investigator should ensure that there is no infringement of right to privacy in the course of collecting open-source evidence. Article 69(7) of the Rome Statute lays down that “evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible”. This means that that the ICC can exclude the evidence if it is obtained through violation of right to privacy.
The comprehensive legal framework laid down by the Berkeley Protocol can be transformational for the way open-source investigators carry out their investigations. The relevance of open-source evidence will only increase with time. At present, it is being used in a number of conflict zones and inaccessible places such as the Xinjiang province of China.
Had it not been for OSINT, the true reality of state sponsored re-educations camps that are being run for Uighur Muslims would have remained hidden for a long time. Therefore, OSINT should be utilised to the fullest extent possible for international criminal investigations.
This article is authored by Aditya Sharma, a 5th year student of B.A. LL.B. (Hons.), at Sybmiosis Law School, Pune, India.
The United Nations General Assembly (hereinafter ‘UNGA’) is the principal deliberative and policy-making organ of the United Nations (hereinafter ‘UN’). It constitutes of all the 193 members of the UN, and due to its operational scope, serves as its governing body. It is the only UN organ endowing equal representation to all member states, and is responsible for general coordination and supervision over the subsidiary bodies of the UN. Apart from these, the UNGA has also been instrumental in enabling and supervising the operations of the International Law Commission, UNHCR, UNDP, and UNICEF. It can also initiate studies and make recommendations to ensure resolution of conflicts and international peace, despite matters regarding threats to peace and security primarily being dealt with by the UNSC. In addition to these, the UNGA has also served as a very important forum for discussions pertaining to global disarmament.
The resolutions of the UNGA are advisory in nature. However, they are binding on internal matters such as elections and the budget. In fact, approval of budget of the UN has been regarded as the most concrete role of the UNGA. Further, by virtue of Article 10 of the UN Charter, it is empowered to pass non-binding resolutions on any matter under the purview of the UN. As most resolutions passed by the UNGA are not binding on the member states, it is pertinent to study the effects of a select few UNGA resolutions and their impact on global polity. This will provide us a qualitative insight into the efficacy of the UNGA and its resolutions. This piece principally deals with the divergent positions in the voting patterns of the members of the UNGA vis-à-vis the permanent members of the UNSC over the period between 2018 and 2020 to highlight the contrasts between the same, and strives to propose suggestions to strengthen the UNGA.
Operational Effects of UNGA and its Resolutions
The UNGA, by embodying the principle of ‘sovereign equality’ provided under Article 2 of the UN Charter, has played a tremendous role in gauging and consolidating collective consensus on a global scale. The formulation of the Universal Declaration of Human Rights and the Millenium Declaration of 2000 are successful products of such a global consensus garnered by the UNGA. Even the Declaration on the Granting of Independence to Colonial Countries and Peoples, which characterised foreign rule to be a violation of human rights, is a milestone in the efforts towards decolonisation. Additionally, one of the greatest successes of the UNGA has been the adoption of the 2030 Sustainable Development Goals, a set of seventeen actionable and trackable global goals to be achieved by the year 2030 for a sustainable future.
Another resolution of significance is the Uniting for Peace Resolution, which enables the UNGA to propose collective measures for restoration of international peace and security in cases where the UNSC fails to discharge its duty owing to a political deadlock. This, in theory, provides the UNGA an alternative course of action to counteract the vetoes of the permanent members of the UNSC. Further, any resolution to this regard would require a two-thirds majority of the UNGA, thus holding greater moralistic legitimacy vis-à-vis the concerned UNSC position, as this would reflect the consensus of the entire global community.
Statistical Analysis of Voting Pattern at the UNGA
The operational effects of the UNGA, as summarized in the preceding section, have been largely driven by majorities secured over cross-regional coalitions of member states across the ‘North-South’ divide. The multipolar fluidity that has emerged at the present level of international political discourse has encouraged an increasing number of member states to challenge the shortcomings of the UNSC. A striking example of this shift in momentum can be observed from the discussions of the seventy-first session, where various members of the UNGA scathingly criticized the UNSC for its inaction in dealing with the Aleppo Crisis – a humanitarian crisis accentuated by the Russian involvement.
Not only in this case, but also in several other instances, the political priorities of the permanent members of the UNSC, and the other members of the UNGA have a marked discordance. This is especially true when the former’s tendency to maintain status-quo of their near-hegemonic powers is juxtaposed with the growing aspirations of the developing member-states.
To academically discern how divergence in the policy resolutions of the five permanent members of the UNSC vis-à-vis the other members of the UNGA plays out at the UNGA, it is pertinent to quantitatively evaluate the voting pattern of the member states with respect to UNGA resolutions. This review of the voting pattern is conducted by using the United Nations Digital Library database. The search criterion for this review are as follows:
The members whose voting patterns were evaluated are as follows:
The data so derived from the search criterion, is as follows:
To ensure standardization, the data presented in Table 3 has been converted into percentage, which is as follows:
To deduce a bloc-wise vote distribution, the statistical mean of the members constituting the bloc has to be derived from Table 4. This distribution is as follows:
To ascertain the existence of a voting pattern, it is pertinent to check the year-wise deviation of the bloc-wise vote distribution presented in Table 5. In other words, the difference in the vote distribution over the years has to be calculated. This deviation is as follows:
From Table 6, it can be ascertained that the deviation in bloc-wise vote distribution has only reached a maximum of three percent, thus reasonably establishing the existence of a probable voting pattern. This enables us to calculate the three-year statistical mean of the bloc-wise vote distribution presented in Table 5 to finally derive the voting pattern of the blocs. This voting pattern is as follows:
From a conjoined reading of Tables 3 through 7, the following inferences can be drawn:
The UNGA serves as the open conscience of the world. As already seen, its multilateral forum shapes the global policy of the UN and contributes to the progress of the modernization of international law and policy. Its supervision over the various facets of the UN has endowed moralistic legitimacy to the organization’s functioning.
However, its abstruse and often divergent positions vis-à-vis the UNSC, led by its five permanent members, has hampered the execution of its policies, and by extension, its potential as the world’s leading representative assembly. In light of these inferences, the following suggestions serve as the closing remarks:
This article is authored by Vahid Bazzar, Ph.D. graduate in international law from Allameh Tabataba’i University, Iran.
Ms. Mokgadi Caster Semenya is a female athlete of South African nationality. The gold medal at the 2012 and 2016 Olympic games and the gold medal at the 2009, 2011, and 2017 IAAF world championships are just some of her honors. She was barred from participating in the world championships under the Eligibility Regulations for the Female Classification. According to the Regulations, which came into force on 1st November 2018, a female athlete who has circulating testosterone levels in blood of five (5) nmol/L or above is barred from participating in some world championships. Such debarment cant be lifted if the athlete reduces her blood testosterone level to below five (5) nmol/L for a continuous period of at least six months (e.g., by use of hormonal contraceptives), and maintain her blood testosterone level below five (5) nmol/L continuously (i.e., whether she is in competition or out of competition) for so long as she wishes to remain eligible to compete at International Competitions in the female category. Of course, these women may still compete without any restriction in the male category in any event at any level of competition, or they may compete in the female category in any event at non-international competitions, provided that they will not be eligible to set in the female category in any event at non-international competitions. To justify the Regulations, IAAF says that without the protection of restricted entry to that class, women athletes would be at risk of being denied the right to compete and succeed at the highest levels (CAS award, para. 456). The Regulations specify that due to the strength and power enjoyed by men over women from puberty onwards (due in large part to men's much higher levels of circulating testosterone), it is generally accepted that competition between male and female athletes would not be fair and meaningful, and the purpose of the Regulations is to ensure fair and meaningful competition in the sport of athletics and ensure that success is determined by talent, dedication, hard work, and other values and characteristics that the sport embodies and celebrates. To challenge the Regulations, Ms. Semenya first took recourse in the Court of Arbitration for Sport (CAS), which is the dedicated court for settling disputes arising from the Regulations (Eligibility Regulations for the Female Classification 2018, para. 5.2), and then appealed to the Swiss Federal Court. The rejection of his application in these two courts led her to raise her case in the European Court of Human Rights (ECHR) (see here, here, and here). In this post, we intend to explain and analyze the CAS award in the Caster Semenya case from the perspective of human rights.
CAS Award of 30 April 2019 in Caster Semenya Case
On 18 June 2018, Ms. Semenya, filed an application against IAAF in the CAS, claiming that the Eligibility Regulations for Female Classification discriminate against female athletes on the basis of sex, since no equivalent requirements are applied to male athletes. The Regulations restrict the ability of some female athletes to compete based solely on the natural or genetic traits which they have possessed since birth and over which they have no control. She argues that the Regulations are not necessary in order to preserve fair competition within the female category, because success in elite competitive sport is the product of both genetic and environmental factors and the world celebrates the genetic differences that make athletes such as Usain Bolt, Michael Phelps and Serena Williams great. The CAS in its 2015 award in the Chand case also upheld the fact that there are many variables, including physical and biological variables, that legitimately affect athletic performance (para. 527).
However, unlike Ms. Dutee Chand, who can take CAS's award in 2015 to suspend the Hyperandrogenism Regulations which barred her from competing in athletics, Ms. Semenya did not succeed in the CAS. The CAS, in its award of 30 April 2019, acknowledged that the Eligibility Regulations for the Female Classification are prima facie discriminatory on grounds of legal sex. However, it is common ground that a rule that imposes a differential treatment on the basis of a particular protected characteristic is valid and lawful if it is a necessary, reasonable and proportionate means of attaining a legitimate objective. Since those biological factors do not correspond perfectly with legal sex in every case, the Panel accepted the IAAF's submission that it is sometimes necessary to devise eligibility conditions that are not exclusively based on legal sex, and in this case, IAAF had adequately demonstrated that the Regulations were necessary or appropriate to ensure fair competition in female athletics. In addition, female athletes who do not enjoy the significant performance advantage caused by exposure to levels of circulating testosterone in the adult male range do not have to compete against female athletes who do enjoy that performance advantage.
Human Rights and CAS Award in Caster Semenya Case
The CAS addresses merely the right to non-discrimination and does not consider the many human rights norms and standards that have been ignored by the Regulations, including the right to the highest attainable standard of physical and mental health, the right to sexual and reproductive health, the right to work and to the enjoyment of just and favourable conditions of work, the right to privacy, the right to freedom from torture or other cruel, inhuman or degrading treatment or punishment, and full respect for the dignity, bodily integrity and bodily autonomy of the person (see A/HRC/RES/40/5). Although General Comment No. 18 declares that if the criteria for the differentiation of treatment are reasonable and objective, and if the aim is to achieve a legitimate purpose under the Covenant, such differentiation will not constitute discrimination, it is difficult to accept the necessity and reasonableness of the Regulations. The right to non-discrimination is one of the essential elements of human dignity, as enshrined in most international human rights instruments, including the Universal Declaration of Human Rights (Article 7), the International Covenant on Civil and Political Rights (Article 26), the International Covenant on Economic, Social and Cultural Rights (Article 2(2)), and the Convention against Discrimination against Women. The right to non-discrimination in sport is also enshrined in the Olympic Charter (Fundamental Principles of Olympism, para. 4) and the IAAF Statute (para. 4.1(j)). The right to non-discrimination has a prominent position in human rights. The fact that the proclamation of most human rights begins with "anyone ..." demonstrates that the right to non-discrimination is rooted within them. Further, the right to non-discrimination must be observed, even in cases where some human rights are allowed to be derogated. For example, according to Article 4(1) of the International Covenant on Civil and Political Rights, in times of public emergency which threaten the life of the nation, the derogation of human rights must not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Therefore, the right to non-discrimination should only be ignored in exceptional cases, and high testosterone levels in blood in some female athletes do not seem to have created such a necessity that the Regulations are treated a reasonable response to it.
Ms. Semenya was born a girl and has legal and social identities as a woman. She has female sexual organs and she has never been intersex. Indeed, many athletes subject to the Regulations might never be aware of their natural traits were it not for the Regulations. Given their legal and social identity as women, the Regulations that exclude them from the female category call into question their very sense of self and of human dignity and will be questioning their sex or gender identity. Next point is that natural physical traits, including high testosterone levels in blood, are innate traits that deprive a related woman of their human rights (see here). Therefore, it cannot be compared to doping where individuals use certain substances in order to prevail on others, and countering them through anti-doping laws is treated as an urgent social necessity.
Another point is that although the Regulations specify that no athlete will be forced to undergo any assessment and/or treatment under these Regulations, these athletes are required to meet the conditions for participating in competitions. Also, the number of female athletes subject to the Regulations is not large enough to hold separate competitions for them, and their only option to participate in the female category is to agree to the medically unnecessary procedures for lowering testosterone levels, including the hormonal treatment which has adverse side effects including diuretic effects that cause excessive thirst, urination and electrolyte imbalances, disruption of carbohydrate metabolism (such as glucose intolerance or insulin resistance), headaches, fatigue, nausea, hot flashes and liver toxicity. The imposition of humiliating treatment to female athletes is illegal discrimination and patriarchal negation of women’s autonomy in decision-making leads to violation of women’s rights to health, privacy, reproductive and sexual self-determination, physical integrity and even to life (see A/HRC/32/44). The right to bodily integrity also refers to the right to control all aspects of one’s health, to respect bodily autonomy and integrity and to decide freely in matters relating to one’s sexuality and reproduction, free of discrimination, coercion and violence (see here). The Special Rapporteur of the Human Rights Council on the right of individuals to enjoy the highest standard of physical and mental health states that sporting organizations must implement policies in accordance with human rights norms and refrain from introducing policies that force, coerce or otherwise pressure women athletes into undergoing unnecessary, irreversible and harmful medical procedures in order to participate as women in competitive sports (see A/HRC/32/33).
The CAS, in its award of 30 April 2019 in the Caster Semenya case acknowledges that the Regulations ignore some human rights. The CAS explicitly acknowledges the violation of the right to non-discrimination by the Regulations and declares that it is common ground that a rule that imposes differential treatment on the basis of a particular protected characteristic is valid and lawful if it is a necessary, reasonable and proportionate means of attaining a legitimate objective. However, it is clear from paragraph 589 of the award that the non-withdrawal of the Regulations which violate some human rights is in order to protect some other human rights: "these Regulations reflect a rational resolution of conflicting human rights in the Caster Semenya case." Of course, in a letter which is jointly prepared by the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, and the Working Group on the issue of discrimination against women in law and in practice in 2018, a different conclusion has been reached. It has been urged that the IAAF withdraw its Regulations. However, the ECHR, which is currently on the case, will certainly pay special attention to human rights violations. A noteworthy point is that it is not possible to violate the CAS award by the ECHR, because the CAS is not a national court. Nevertheless, the ECHR may ascertain the international responsibility of the Swiss government for the Judgment of the Swiss Federal Tribunal, which upheld the CAS award.
A Revolution Called Starlink and The Future of Space Commercialization: Understanding the Legal ImplicationsRead Now
[This article has been authored by Aranya Chatterjee, a second year law student at Bharati Vidhyapeeth Deemed University, Pune, and Raj Shekhar, a second year law student at National University of Study and Research in Law, Ranchi.]
The announcement of SpaceX megaproject ‘Starlink’, an ambitious project which aims to diversify the reach of the internet to the remotest of places by the way of satellite internet constellation, has raised concerns regarding the overall management of the system and the potential treaty violations it could lead to.
Last year in the month of June, a total of 58 satellites were launched, followed by 310 this year which have made the satellite count rise to 1200 with the majority of these being placed in the Lower Earth Orbit. Such huge numbers of satellites and their deployment has raised a number of legal concerns regarding the right to view space, astronomers’ rights and debris management. This article aims to analyse these issues and strives to understand the legality of the ‘Starlink’ project.
Ground-Based Explorers v. Space-Based/Corporate Explorers: The Legal Conundrum
The primary law that governs space is termed as ‘international space law’. It is seen as a direct outcome of the five space treaties which were adopted under the direct supervision of the United Nations, namely the Outer Space Treaty, the Rescue Agreement, the Liability Convention, the Registration Convention and the Moon Agreement. The laws governing the present issue shall fall under Article 1 of the Outer Space Treaty which states that the use of outer space and celestial bodies is to be carried out for the benefit and in the interests of all mankind. It prohibits any kind of discrimination and ensures that every nation shall be free to access, study and explore space freely.
Based on how they study space, experts can be classified as ground-based explorers and space-based/satellite-based explorers. As the names suggest, the former studies space from ground-based observatories, while the latter does it through the aid of artificial satellites in space. While the space-based group of explorers are potentially unaffected by the launch of Starlink satellites, the interference caused by these satellites could very well affect ground-based explorers.
The reflection by these artificial metallic objects would make them appear as a slow-moving dot of light in the night sky. This would effectively cripple the accuracy of ground-based observatories which would be at a high risk of misinterpreting these as stars and generating erroneous data. Further, the transmission by these satellites can also affect the overall astronomical recordings and observations which will be detrimental to the ground-based explorers and would be in gross violation of Article 1 of the Outer Space Treaty as it would directly affect the right of nations to freely study, access and explore the space.
To have a better understanding of what might be the consequences we can refer to the recent Neowise Comet incident. The comet which came in close proximity to the sun after almost 7000 years saw its moment of glory being ruined by a Starlink satellite which blocked the clear line of sight.
The Night Sky View: NEPA and the Detrimental Effects of Starlink
These shiny artificial satellites lead to the creation of a trail that disrupts the vision of the night sky. Operations such as Starlink, need to be approved by the Federal Communications Corporation while taking into consideration the National Environmental Policy Act, 1970 (NEPA).
NEPA aims to strike a delicate balance between humans [AS1] as well as the environment and biosphere. However, this narrow interpretation of the word ‘environment’, which fails to include orbital space around earth as a part of it, is insufficient to evaluate projects like Starlink. Any program before getting approved under NEPA would be evaluated based on its impact on land, water, air, structures, living organisms, environmental values at the site or sites, and the social, cultural and economic aspects. However, projects like Starlink which affect the orbital space, which even though is not included in this definition but has a significant impact on the other included aspects, would be successful in evading the scrutiny.[AS2] [AS3]
We can conclude that the current definition is too narrow considering the giant scientific leaps that mankind has taken towards space explorations. Thus, to keep an effective check on such large scale commercial launches, it is pertinent to make relevant changes to the entire idea of NEPA and its application. The first of such changes could be expanding the definition of ‘environment’ to regularise this grey area of Earth’s orbital space.
The Threat of Space Debris and Pollution
One of the major threats that the existence of such a large number of Starlink satellites pose is that debris. Freely floating masses of debris would increase the probability of collisions between two or more such satellites. Further, an entire fleet of satellites can cause disruptions to the future launch of other satellites or space exploration missions. The collision between one satellite could cause a domino effect affecting all others in orbit.
Such a huge amount of revolving space debris would add to the already growing issue of space pollution, especially in the earth’s orbital space. This would effectively lead to the crippling of the capability of ground-based observatories. Therefore, it could potentially be a ‘discriminatory and disruptive move’ which shall fall foul of Article 1 of the Outer Space Treaty.
Changing Dynamics of Global Internet and Communication Technology
In the late 1990s, fleets of mobile-communication satellites were deployed in the circular orbit called as the Geostationary Orbit (“GSO”) which lies roughly 35000 km above the earth’s equator. However, with the development of advanced technologies, scientists developed space-based communication systems which can be deployed and maintained well under 2000 km above the equator called as the Lower Earth Orbit (“LEO”).
While the GSO based satellites could provide much larger coverage, the satellites being launched under Starlink are LEO deployed which enables them to provide extensive coverage to the Earth’s surface over which they have been deployed. Subsequently when a large number of satellites were deployed in the GSO, it came to be recognized as a scarce natural resource, under Article 44 of the Constitution of the International Telecommunication Union. As a result, companies involved in telecommunication started to move towards LEO based deployments, leading to the present case of Starlink.
The Global North and South Debate: Does Cheap Internet come at a "Price"?
Starlink has been dubbed as a game changer for the future of global internet connectivity. With its potential to provide uninterrupted high-speed uplinks to the remotest of places with close to having no infrastructure requirements; the prospects are innumerable. However, is the ‘poorer’ global south going to pay a ‘huge’ price for the promised ‘cheap’ internet access?
There is a stark difference between the global South and the North when it comes to space exploration capabilities. The rockets that are launched are generally limited to a one time use, and the overall rocket propellant fuel procurement is an expensive task too. The financial stability of the developed nations such as USA, Canada, etc. allows them to invest huge amounts of finances into space exploration programs.
Thus, unlike their counterparts the poorer global South relies on ground-based observatories that are relatively less expensive and much more cost effective than actual space flights. As deliberated, the effect of Starlink will be extremely detrimental to these nations whose space exploration models would be rendered useless. This would effectively deprive them of an equal opportunity to compete in the space race and can be yet again seen as ‘discriminatory and disruptive’. Hence, the so-called ‘cheap’ connectivity would force these nations to pay the unwanted ‘high price’ of space exploration deprivation.
It's impossible to put a halt to the commercialization of space but an intervention towards a sustainable model of commercialization-cum-development may hold the key to all future projects. It is evident that Starlink significantly has more issues than what meets the eye, be it risk of potential environmental pollution through space debris, violation of astronomer’s right to freely observe space or potential risk of destruction of other essential man-made objects in its vicinity. Clearly, such issues are incapable of being dealt with by the current legislative framework. As a suggestion, a new global code of conduct or legislation governing the orbital sphere of Earth must be introduced which focuses on building a sustainable future for space commercialisation. Alternately, this could also be achieved through expanding the definition of ‘Environment’ under the NEPA to impose stricter liability on companies that foster innovation, which eventually balances the right to access space without compromising on the global reach to share mankind’s heritage of space.
The Bumper Development Case: Madras HC goes a long way in reinforcing the International Law on Cultural HeritageRead Now
This article has been authored by Priyam Indurkhya, a second-year student at National Law Institute University, Bhopal, currently pursuing B.A.LL.B. (Hons.) course.
A Division Bench of the Madras High Court comprising Justice R. Mahadevan and Justice P.D. Audikesavalu has delivered a judgment on 7th June 2021, issuing a set of 75 directions for the preservation of historical monuments and temples in Tamil Nadu. Experts have hailed this judgment as a milestone in heritage management and even compared it to the landmark judgment of the English Court of Appeals in Bumper Development Corporation v. Commissioner of Police of the Metropolis (1991). Seen in this context, this piece attempts to analyse the judgment of the court in light of the international law on cultural heritage as well as the international best practices in the field of heritage management.
The state of Tamil Nadu homes more than 42,000 temples, several of them being more than two thousand years old. These temples are not only places of worship, but are also repositories of knowledge and treasure houses of arts & architecture. Of these temples, around 38,000 are under the control of the Hindu Religious and Charitable Endowments (HRCE) Department of the government of Tamil Nadu. The management of temple lands, funds, properties, the upkeep of temples, and their renovation is the responsibility of the HRCE department. However, the past few years saw numerous cases reporting the mismanagement of temple funds, theft of temple jewels, idols and valuables, smuggling of antique artefacts, and deterioration of temple structures due to unplanned renovation. Finally, the Madras High Court took suo motu cognisance of the issue based on a report published in ‘The Hindu’ titled ‘The silent burial’, which pointed out the inaction of the government in establishing the Heritage Commission. While around 47,000 acres of temple land were in the hands of encroachers, the HRCE department which is the custodian and administrator of temple properties was indifferent to the prevailing circumstances. Expressing its disappointment over such dormancy, the court noted, “The custodians of magnificent and antique temples and historic monuments are indifferent, and the preservation of our treasured heritage is deteriorating not as a result of natural disasters or catastrophes, but as a result of careless administration and upkeep.” (para 1.1)
Given the grim state of affairs, the court, acting in the capacity of parens patriae, took upon itself the protection of the historic monuments including temples, antiques, idols, manuscripts, murals, among others and issued a set of 75 directions to concerned authorities for strict compliance.
Directions of the Court
After a thorough analysis of the report submitted by the amicus curiae and the suggestions of the UNESCO fact finding mission on heritage management in Tamil Nadu, the Bench issued a set of detailed guidelines. It directed the Tamil Nadu government and the Archaeological Survey of India (ASI) to constitute a 17 membered Heritage Commission comprising the representatives of the HRCE department and ASI, renowned historians, anthropologists, chemical analysts, and experts of Agama and Shilpa Shastras. Besides advising the state government on heritage issues, the Commission is also tasked with identifying the monuments, structures, temples and antiques of historical and archaeological importance, and categorising them according to their age and preservation needs. It is additionally entrusted with supervising their repair, restoration and maintenance works.
The judgment also requires the constitution of State Level Expert Committee and District Level Committees comprising qualified Staptathi (traditional temple architect), experts from history, iconography, epigraphy, Fine Arts, Agama experts, and mural experts alongside the representatives from archaeology and HRCE department. These Committees shall be required to ensure the systematic repair and renovation of temples; lodge complaints against the illegal sale of temple lands; take action to retrieve them; evict encroachers, and prepare an inventory of idols, jewels, valuables, artefacts, paintings and other valuable possessions of the temples. The HRCE department is directed to construct strong rooms with video surveillance and alarms in the temple premises. Other significant directions include regular appointment of temple trustees; regular salary to temple staff as per Minimum Wages Act; launching courses on heritage management; regular and independent audit of temple funds, and establishing a special tribunal for settling disputes relating to heritage, tradition, recovery of temple lands and other issues relevant to heritage management.
The judgment also noted that it would be incommensurate just to protect the monuments and heritage sites as the history, traditions, knowledge and practices associated with that monument should also be preserved and passed on to the next generation. It observed that the practices such as performing daily temple rituals, chanting Vedic hymns, performing traditional music, dance and drama, and organising festivals are intricately interwoven with the existence of the temple ecosystem. Therefore, the court directed the state to appoint trained Archakas (temple priests), Oduvars (hymn chanters), folklore and drama artists, and musicians in temples to ensure that these traditional practices do not go into oblivion.
Reinforcing the principles of international law on cultural heritage
The judgement palpably reinforces the principles of international law on cultural heritage. Cultural rights are an indispensable part of human rights recognised in international instruments. The right to participate in cultural life is recognized in human rights instruments, particularly in article 27 of the Universal Declaration of Human Rights and article 15, paragraph 1 (a), of the International Covenant on Economic, Social and Cultural Rights. The scope of these rights includes the “access to and enjoyment of heritage in its tangible, intangible, natural and mixed manifestations”. Thus, preservation of cultural heritage is significant from the perspective of international law. A significant corpus of international law on cultural heritage comes from the multilateral treaties and conventions adopted under the auspices of UNESCO.
Recognising the importance of cultural and natural heritage, the Convention Concerning the Protection of the World Cultural and Natural Heritage (‘World Heritage Convention’) was adopted by the UNESCO in 1975. Having ratified the Convention in 1977, India is duty bound to protect, conserve, present and transmit the cultural and natural heritage of the nation for the benefit of its future generations (Article 4). Moreover, to effectuate the same, the Convention requires the state to counteract the dangers that threaten its cultural or natural heritage by taking appropriate legal, scientific, technical, administrative and financial measures (Article 5). Thus, the judgement ensures the compliance of articles 4 and 5 of the World Heritage Convention by identifying the threats to the cultural heritage of the state and directing the authorities to prioritise the repair and renovation of temples by taking technical and scientific expertise of the UNESCO.
Furthermore, one of the major highlights of the judgment besides the protection of tangible and visible aspects of heritage is the emphasis placed by the Bench on the preservation of traditional community practices passed on from generation to generation. Observing that an art can survive as long as it is being practiced, the Bench ordered the state to ensure the continuance and promotion of practices like the Vedic chanting in temples, performing traditional music, dance and drama, playing traditional instruments, among others. Interestingly, the Convention for the Safeguarding of the Intangible Cultural Heritage (‘Intangible Heritage Convention’) was adopted by the UNESCO in 2003 with the similar objective of safeguarding the intangible cultural heritage including oral traditions, performing arts, rituals, social practices, traditional skills and crafts. Being a party to this Convention, India is committed to safeguarding, developing and promoting the intangible heritage of the country (Part III of the Convention). The directions of the court in the judgment concur with the aims and objectives of the Convention and remind the state to fulfil its obligations not only under the national law (Article 49 of the Constitution of India), but also under international law.
Learning from the international best practices
The initiative of the World Heritage Committee (WHC) named ‘the Recognition of Best Practice in World Heritage Management’ encourages the state parties to learn from the best practice case studies of different nations in preserving their heritage sites. In that regard, the management of the Historic Town of Vigan in Philippines, which was chosen as the best practice model by the WHC can be a learning experience for India. The Vigan authorities engaged the local community as the primary stakeholders of the tangible and intangible cultural heritage of the historic city. They trained the locals as tourist guides and supported traditional artists and craftsmen, thus empowering the local community of the historic city. This instilled in the minds of the community a sense of belongingness and shared ownership of their heritage. As a result of the integration of community knowledge and governmental efforts, Vigan has not only sustained its cultural heritage, but also thrives as a primary destination for visitors from Northern Philippines.
Similarly, the case of Kazan Kremlin in Russia is a unique example of how the blend of conventional (tourist sightseeing, museum events, conferences etc.) and innovative (interactive screens and booths, QR codes, historical reconstruction events, conducting massive cultural fests such as the Kremlin Live) methods can effectuate the restoration, conservation and preservation of a heritage site.
The judgment of the Madras HC, directing the inclusion of the local community in protecting the tangible heritage (by engaging Stapathis trained in Agama & Shilpa Shastras) and intangible cultural practices (by engaging Archaks, Oduvars, temple musicians) is similar to the best practices adopted by the Vigan authorities. Moreover, the introduction of heritage management courses, digitalisation of records, creation of strong rooms in temple premises, promotion of scientific and technological framework in renovation activities, etc. resonates with the international best practices in heritage management.
Besides engaging the community, the Bench has also directed the state government to collaborate with the Archaeological Survey of India, non-governmental agencies and international bodies to benefit from their expertise in heritage management. In this regard, it is pertinent to mention the success story of the Cultural Heritage Administration (CHA) of the Republic of Korea. The CHA, with an active collaboration with UNESCO and the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), has been not only able to preserve the Complex of Koguryo Tombs, but also create education, training and research opportunities in cultural heritage conservation in Asia-Pacific. Similarly, as directed by the Bench, India can benefit by engaging organisations like UNESCO, ICCROM, ICOMOS, which have been working for the cause of heritage preservation for years given that the preservation of heritage monuments requires specialised scientific and technical expertise. Their specialisation in preventive conservation technique can certainly come in handy in the Indian scenario.
Overall, the directions of the Madras High Court in the present judgment are indeed breakthroughs in heritage conservation. The judgment not only lays down a concrete framework of heritage management, but also reminds the state of its obligation under the World Heritage Convention and the Intangible Heritage Convention of the UNESCO. The way forward lies in adopting international best practices by engaging the local community and international bodies in heritage conservation process. Acknowledging the role of various stakeholders will certainly help in streamlining the process. As pointed out by the UNESCO report submitted before the court, the HRCE department has neither sufficient staff nor the required competence to singlehandedly manage the affairs of 38,000 temples of the state. It is time we acknowledged that conservation, renovation and upkeep of monuments with rich heritage is not simply ‘yet another maintenance activity’. It requires a blend of traditional knowledge of scriptures like Agama and Shilpa Shastras, as well as scientific and technical expertise of specialised bodies in the field of heritage management.
In essence, dedicated efforts towards heritage preservation and synergy between state authorities, central agencies, non-governmental organisations, local community and international bodies is the need of the hour and only such a method of conservation will ensure that the ‘things of beauty’ stand tall and strong and continue to give ‘joy forever’.
This article is authored by Garima Khanna and Priankita Das, currently fourth year students at Dr. Ram Manohar Lohia National Law University, Lucknow, pursuing the B.A.LL.B. (Hons.) course.
When international space law emerged as a distinct field of study, there were only a few players in the spacefaring league and hence, scope of disputes among them was minimal. However recently, the whole ball game has transitioned with big names like Jeff Bezos, Elon Musk and Richard Branson eyeing the bounds of space, which is a territory that offers bountiful opportunities that can be availed only by some. There additionally are entities like Blue Origin and SpaceX which seem like the biggest stakeholders yet. Despite this, the United Nations (“UN”) and the Space Conventions (“Conventions”) fail to recognize or even acknowledge the presence of Non-State Actors in their dispute resolution mechanisms. ‘State sovereignty’ has always been put up on a higher pedestal, thus causing hesitation in providing private players with an appropriate legal channel. Thus, an international dispute resolution mechanism which is binding and comprehensive enough to make “space” for non-state entities is the need of the hour.
LACK OF RECOURSE TO DISPUTE RESOLUTION CHANNELS
None of the Conventions on outer space provides a binding framework for dispute resolution, and this gap seems intentional. Though activities in outer space became a reality half a century ago, the risks pertaining to it were colossal, and thus, states were reluctant to accept the compulsory jurisdiction of an international tribunal. Even though State actors have a recourse by means of Article 2(3) of the UN Charter which obligates parties to settle disputes in a peaceful and amicable manner, parties are often torn apart between this duty and the absence of adequate framework.
As for Non-State Actors, there is an altogether lack of recourse available in international law. This gap has even been addressed in the UN wherein Hon’ble Judge Pocar had expressed concerns regarding the existing dispute resolution procedure in the fifty-first session of the UN Committee on the Peaceful Uses of Outer Space (“UNCOPUOS”). He observed, “international space law showed a number of lacunae due to limitations in their personal or material scope which made them unavailable to private parties or only available for restricted ranges of disputes.”
As it exists today, the Outer Space Treaty, being the magna carta of space law, goes no further than demanding co-operation and consultations between State Parties, which is a traditional resolution mechanism running parallel to the one provided by the UN Charter. This typically aids only in the avoidance of tensions between the parties instead of solving them with concrete tangible solutions. Only the Liability Convention provides for State Parties to engage in diplomatic negotiations in case of a dispute; and if the parties fail to reach a settlement, they shall have to establish a Claims Commission that is empowered to decide on the merits of the case. Thus, even the handful of provisions under the Conventions that touched upon dispute resolution solely called for consultation proceedings, which are not obligatory for third party dispute resolution.
In addition to this, while States have the flexibility to declare themselves subject to the compulsory jurisdiction of the International Court of Justice (“ICJ”) on a case-to-case basis or by unilateral declarations, a non-state entity cannot be heard before the ICJ. Thus, the only ray of hope for the Non-State Actors remains national jurisdiction, which further complicates things. Owing to reasons such as the courts in the host state being less-equipped to deal with cross-boundary disputes; situations favouring the host state, and parties being dissatisfied with the decision due to the decision not being in line with their goals, there seems to exist numerous other factors that needs consideration before resorting to this mode.
In the authors’ view, these methods are neither sustainable nor practical. Thus, an exhaustive regime in the form of an elaborate legal instrument is required to facilitate all conflicts, whether between States; between Non-State Actors, or between the two arising in the space sector.
Keeping all the aforesaid considerations in mind and taking into account the increasing participation of Non-State Actors in outer space activities, it is imperative to decipher their place in the dispute resolution mechanism of international space law. For this, the authors have come up with a two-pronged approach - firstly, the Non-State Actors could be represented by the States Parties to the Conventions before the ICJ; and secondly, if the parties so desire, they could utilize the Alternative Dispute Resolution (“ADR”) mechanisms available to them under national and international law.
State Representation on behalf of Non-State Actors
Traditionally, only States are permitted to be parties to a dispute before the ICJ. However, there have been instances where the States have represented individuals or corporate entities before the ICJ while dealing with issues involving their rights and obligations. This indicates that representation of Non-State Actors before the ICJ by way of State involvement is not a new phenomenon, and thus, can be employed by private players in the present day and age. To further support this, reliance shall be placed on certain Conventions to exhibit a link between the State Parties and Non-State Actors.
The Outer Space Treaty permits States Parties to use and explore outer space in accordance with international law. Further, it states that State Parties shall bear international responsibility for activities conducted by non-governmental entities, and shall be required to authorize and continually supervise such activities. In addition to this, the Registration Convention requires State Parties to maintain a national registry of all objects (whether private or government) launched into outer space from their territory, over which they shall retain jurisdiction and control. Thus, it is implied that all outer space activities, whether by State or Non-State Actors, are under the jurisdiction and supervision of the State Parties to the Conventions.
However, issues persist with the aforementioned mechanism firstly, States may not deem it politically favourable to represent Non-State Actors before the ICJ; secondly, the decision of the Claims Commission is non-binding unless the parties agree otherwise; thirdly, it is limited to disputes arising out of the Liability Convention; and finally, it lacks precedence. The only claim that ever arose under the Liability Convention was that of the Cosmos 954 case, but that too was later settled between the USSR and Canada by the signing of a protocol that had no mention of the Liability Convention. Thus, it can be stated that State representation is not the best solution for Non-State Actors looking to settle their disputes. In lieu of this, the authors suggest a second mechanism for conflict settlement, which is - utilisation of ADR mechanisms by Non-State Actors.
Utilisation of ADR Mechanisms
The use of ADR in contemporary times has been widely encouraged due to its flexible, confidential and speedy process. Many commercial and investment disputes have been settled with the help of these measures. Thus, it is natural to discuss their applicability to space disputes as well.
In 2011, the Permanent Court of Arbitration, which is predominantly reserved for settlement of disputes between States, came up with its “Optional Rules for Arbitration of Disputes Relating to Outer Space Activities,” (“Rules”) based on the 2010 UNCITRAL Arbitration Rules, and envisages dispute settlement through arbitration between State, as well as Non-State, actors. The Rules also provide for a broad scope of application, which would address all space-related disputes, and with the issue of technicalities of space activities. This can be done by creating a provision that would enable parties to submit a document to the arbitrators, summarizing the technical aspects of the case. Apart from this, the International Law Association (“ILA”) has adopted an “ILA Draft Convention on the Settlement of Space Law Disputes,” which puts States at par with Non-State Actors for the employment of their dispute settlement mechanisms, thus providing them with more options for the utilization of ADR methods.
In addition to this, the usage of Investor-State Arbitration has also been tested and approved in the space sector, with three cases already having arisen in the existing framework of Investor-State Dispute Settlement. Thus, the use of ADR Mechanisms seems to be a favourable solution for Non-State Actors looking to settle their space disputes without the involvement of their States. Furthermore, an arbitral award or any other decision coming from a tribunal would rather have an effect of a binding decree, unlike the recommendatory decisions under the Liability Convention that seems to be hanging by a thread.
With the rise of activities and competing parties in the space arena, it is important to take note of the reliefs available to both State and Non-State Actors in international space law for dispute settlement. The present Conventions were formulated in an era where these activities could not be conceived, thus the drafters of these Conventions did not deem it necessary to address the issues of dispute settlement between Non-State Actors. However, we have come light-years ahead in terms of scientific and technological advancements, and thus, these Conventions have become outdated, and there arises a necessity to address the lacunae present therein and deal with the ever-changing times and circumstances. Certain scholars have suggested the establishment of a separate international tribunal catering only to space law disputes, but the authors are of the view that the feasibility of the existing mechanisms, i.e., State representation and ADR mechanisms, should be tested first.
If a system of ADR were to be developed wherein the principles of the Conventions were imbibed and the settlements were made binding upon the parties, it would be the ideal forum for all space related disputes. Moreover, the use of ADR would encourage more investors to step into the arena of space activities, and thus, lead to further technological and scientific advancements. Therefore, the authors advocate for the use of ADR for settlement of disputes between both State and Non-State Actors in international space law.
Facebook Evidence & International Criminal Court: Is It Finally the Hour to Rule on its Admissibility?Read Now
This article is authored by Astha Bhattacharya, currently a second year student at National Law University Odisha, Cuttack, pursuing the B.A.LL.B. (Hons.) course.
The Nuremberg trials paved the way for the first international criminal trial, marking the dawn of a new beginning for international criminal jurisprudence. But even after seventy-five years, the struggle against impunity still continues. In the recent years, there has been a surge in evidences derived from open sources, especially through platforms like YouTube, Instagram, and Twitter which has massively transformed the way criminal prosecutors and investigators acquire, examine and produce evidence in a court of law.
It is the prosecutor's responsibility to produce a substantial level of proof for backing their legal arguments, and to clarify the conflict's backdrop and the primary components of offences along with the modalities for accountability. Social media proof, under this paradigm, can provide significantly more information than just about any other type of source. However, its dark reality shows us the convenience with which the offenders can distort social networking sites, the paucity of requirements and regulations to establish the ownership of the Facebook pages, groups, posts and online communications, and the vast quantity of such testimonies.
By making a comparison between the Bemba et al. case and the recent Yekatom and Ngaïssona case, this article explores the domain of admissibility of facebook evidence in the International Criminal Court. Facebook proof is the only social media evidence which imposes a unique obstacle of determining ownership and veracity, despite the fact that it is by far the most frequently utilized social media platform.
Additionally, the forthcoming ICC trials, such as Al-Werfalli, Said, and Gicheru, are anticipated to pose identical troubles, given that almost all the concerned events had occurred post 2012, when Facebook had already established itself as a prominent social networking site. As a result, the moment has arrived for the International Criminal Court's Chambers to decide on the admissibility and appropriate significance of Facebook evidences in its cases.
The evolution from the Bemba et al. case to Yekatom and Ngaïssona
The admissibility of Facebook evidence in the ICC was first addressed through the Bemba et al. case. In this case, on the receipt of an anonymous mail, which warned the investigator of the practice of witness bribing, the prosecutors had charged the defendants for violations under Article 70 of the Rome Statute of the International Criminal Court.
In Bemba, the suspect was acquitted of all charges of command responsibility in the Central African Republic's 2002-2003 military war, which featured the government, aided by the MLC group and headed by Bemba on one side, against the insurgents led by General Bozizé on the other. It was through four images acquired from Facebook that the prosecutor tried to connect witnesses and verify additional proof. As a response the defendant stated that the pictures were not prima facie genuine or dependable as setting up of a Facebook account does not demand a legitimate and traceable identification. As a result, it was impossible to determine whether a Facebook profile with a certain username belonged to that individual. The prosecution disagreed with this argument. However, the court did not ponder upon and resolve this issue in its final judgment, presumably because many other types of proof, such as eyewitness accounts supported what the images were supposed to illustrate.
On the contrary, in the case of Yekatom and Ngaïssona, the accused were suspected of crimes against humanity and war crimes towards citizens of Islamic Heritage in the Central African Republic between December 2013-2014. The prosecution's strong dependence on Facebook data is explained by the conflict's temporal span. The prosecution in this case heavily relied on Facebook evidence to prove the suspect’s intention and motive to confirm that the crimes against humanity and war crimes were undertaken by the defendant, subsequently trying to assert their case theory. In its opening arguments, the Ngaïssona counsel contended that Facebook conversation does not meet the highest factual level required by the Court, and that they will hence, contest such proof.
The ICC's options for handling Facebook proof and the future ahead
The Rome Statute and Rule 69 of the ICC Rules of Procedure and Evidence defines the admission of evidence in the ICC. According to it, evidence would be accepted if it passes a three-part test namely (i) relevance, (ii) probative value and (iii) absence of prejudicial effect. Despite the fact that the ICC Court has traditionally given more weight to witness evidence, they now urge parties to submit any tangible evidence, including digital proof, to establish that the material presented at trials is complete.
Following the admission, ICC judges assess the probative value and "appropriate weight" of the accepted proof in compliance with Rule 63(2) of the Regulations. This happens at the completion of a trial, when all the evidences are being evaluated thoroughly. After deeming the evidence trustworthy, the court assigns it a weightage depending on its usefulness in furthering the court’s investigation.
As indicated in the introduction of this article, the ICC Chamber prefers to encourage parties to present material that validates their case theory. In addition, the Chamber will, in essence, accept proofs that fulfill the Court's social media evidence admissibility criteria, as outlined in the ICC's e-Court Protocol. Ultimately the final weight that the Trial Chamber V will give towards such a proof is the major determinant.
Conferring Facebook evidence with a high probative value will indeed indicate that it would eventually suffice to substantiate several aspects of the prosecution’s arguments. Nonetheless, it raises grave reservations regarding fair trial, especially if the evidence is assembled in such a manner that it makes a case conclusive and further trying to edit it would only deter the Court from finding the truth. Furthermore, as open-source investigations are contemporary and challenging, use of technology which the defense counsel and the Chamber might not have expertise and skills in would lead to a compromise in questioning of the suspects. Moreover, the large amount of proof which the defense has to handle and possibly contest at the advanced stage of the trial might pose a challenge.
On the other hand, if accorded with low probative value and not backed by additional proof, the evidence will not be enough to prove a substantial fact and much of the case theory of the prosecutor will remain unsubstantiated. Allowing Facebook and other social media communications to have a low probative value in this as well as subsequent cases might thus weaken the Court's truth-finding purpose in the future.
In international criminal law, obtaining sufficient and exact proof about the occurrence of core crimes continues to pose a significant problem. However, to narrow this issue, the role of open sources like Instagram, Twitter, YouTube and Facebook is crucial as they have become part and parcel of our daily existence. Even though the value which open source digital evidence adds to a particular trial is immaculate which can prove to be beneficial in the long run for investigatory deadlocks in a number of cases (like Syria and Myanmar), we should not turn oblivious to the threats posed by it. The acceptance of open source evidence raises concerns on the grounds of credibility, authenticity, impartiality, and ability to add more insights and its consequent impact on fair trial rights.
The application of the Berkeley Protocol on digital open source investigations becomes important to counteract risks posed by open source evidences. However, there is a need to expand the scope of the Berkeley Protocol and vigilantly assess such evidences even during its pre-trial and trial phases to ensure that the defendant’s interests as well as the integrities of the proceedings are protected.
As it is imminent that new cases will emerge during this era when every second individual operates a social media account, we cannot turn Nelson’s eye towards the fact that there is a need to include more social media and facebook specialists, having knowledge of the most recent as well as the older programming languages and software in the prosecution and the defense investigations. The involvement of the defense in investigation and acquiring proof earlier than their anticipation will also provide the ICC with more leeway in assessing this type of evidence in the forthcoming trials and also provide a small window to the defense to assess and prepare their arguments against the large quantity of evidences.
The admissibility of Facebook evidence in the International Criminal Court would indeed be a crucial facet in the forthcoming trials of the ICC. However, at the same time, its admissibility should be reviewed on judicial grounds so that any disadvantages attached to it do not hamper the impartial trial of a case.