This article has been authored by Diksha Singh, III-year student at National University of Study and Research in Law, Ranchi.
Yemen went from being the heart of ancient Arabia to one of the poorest countries in the Middle East. For the last five years, Yemen has been torn apart by war as the local groups on the ground are fighting each other while a Saudi led coalition bombs from above and caught in the fight are millions of Yemenis desperately struggling to survive. The United Nations Children's Fund (UNICEF) has declared that Yemen is going through the worst humanitarian crises in the world with almost 24 million of its population that amounts to 80 percent of the total population of the country are in dire need of humanitarian aid. With Covid-19 spreading rapidly, Yemen is miserably failing in containing the virus as there is a shortage of basic equipment like masks, gloves, PPE kits and essential medicines. GENESIS OF THE WAR The government of Yemen and the Houthis have been in conflict since 2004. Houthis are a Zaidi Shia rebel group that was established in 1990 to oust the government and take political control over the country. After the Arab spring that hit Yemen in 2011, the Houthis led massive protests against the government of the then-president Ali Abdullah Saleh in the name of corruption. Saleh was removed and the power was transferred to his deputy, Abdrabbuh Mansour Hadi. President Hadi struggled to bring stability in the country due to the attacks by jihadists, a separatist movement in the South and the military’s loyalty to Saleh. The Houthis conveniently took advantage of the new president’s weakness and took control over the capital city of Sana’a. In 2015 the Houthis took over the president’s residence and forced him to resign. Following which, President Hadi moved to Saudi Arabia and invited neighboring countries to intervene and control the situation. On this request, a nine-member coalition comprising of Saudi Arabia, UAE, Egypt, Bahrain, Jordan, Morocco, Kuwait, Qatar and Sudan began Operation Decisive Storm, which set forward a conflict between the Saudi led coalition and the Houthis. Saleh, who had joined hands with Houthis later, called upon Saudi Arabia to negotiate, but due to Saleh’s unfaithfulness, the Houthis assassinated him in 2017. Houthis are said to have been supported by Iran as Iran itself comprises of a Shia majority. UAE and USA accuse Iran of supplying arms and ammunition and missile technologies to the Houthis. This has led to a proxy war between archnemesis- Iran and Saudi Arabia. INTERNATIONAL LAW ON CRISES AND CONFLICT To understand the application of international law and Charter of the United Nations (Charter) which is a multilateral treaty enacted to maintain peace and security it is of prime importance to identify the key players of the ongoing conflict. These can be categorized into State actors and Anti-State actors. State actors can be defined as a party to the conflict which has a legal authority by the legitimate government to apply force. Anti-state actors are those that function without any legitimate authority and against the government of Yemen. State actors The state actors would include the Hadi government that has been recognized as the legitimate government by the UN. The Saleh forces joined the Hadi government after the Houthis assassinated their leader Saleh and therefore, should be considered as the State actors. The Saudi-led coalition, which is working on the request of the Hadi government, is also categorized as the State actor. Anti-State actors The Houthis being the rebellion group that has time and again been in conflict with the government is identified as the non-state actor. Al-Qaeda and ISIS have gained significant control in Yemen by taking advantage of the political vacuum created by the Houthis. According to a report published by the UN, the ammunition and missiles procured by the Houthis were produced in Iran, which has been constantly accused by the US and UAE on many occasions. This makes Iran an accomplice and an anti-state actor in the conflict. The US has been conducting drone strikes in various regions of Yemen without the authority of the government, which has caused massive loss of life. In response to that, the UN has acknowledged that the drone strikes by the US are against the International Humanitarian Law. USE OF FORCE BY CONSENT OR INVITATION Article 2(4) of the Charter explicitly mentions that all nations must refrain from use of force on any other state or territory. However, an exception to this rule has been laid down under Article 51 and Article 39-41 of the Charter. These Articles allow the members to use force in case of self-defense until the Security Council has taken the necessary measures to maintain peace and security. For such intervention to be legally acceptable, certain criteria have to be fulfilled. First and foremost, it is necessary for the highest acting official to grant such permission. Secondly, the government providing such consent must be legitimate and recognised internationally. In a letter dated March 25, 2015, President Hadi officially invited Saudi Arabia to intervene in the matters of Yemen and restore peace and stability. In the aforesaid case, the Hadi government has been declared legitimate by the UN and, thus, can request other states to intervene. The International Court of Justice (ICJ), in its landmark judgement of DRC v. Uganda, has established that intervention by invitation is allowed at the request of the government. This unequivocally implies that the Saudi led coalition does not violate the international law on use of force or illegal intervention. CATASTROPHIC HUMANITARIAN CRISES Yemen was already one of the world’s poorest countries before the war took place and was largely dependent on humanitarian aid. As the war broke out, the conditions worsened and Yemen is encountering the worst humanitarian crises this world has seen. The economy, the education system, the healthcare system and infrastructure have been brought to pieces. Like any other war, the worst sufferers are the civilians. Thousands of these innocents have been children. Around 2 million children under the age of 5 are suffering from malnutrition. The collapse of the education system and destruction has robbed the students of their bright future. According to the UN, every 10 minutes, a child under the age of 5 dies in Yemen due to preventable causes. This brings us to the humanitarian laws applicable in cases of conflict and war. Article 14 of the Additional Protocol II of the Geneva Convention prohibits starvation of civilians as a method of combat and also prohibits attack or destruction of objects that are indispensable to human life such as food, crops, poultry and clean drinking water. Rule 55 of the ICRC Customary IHL mandates that parties to a conflict are obliged to allow and facilitate unimpeded and rapid passage of humanitarian relief for the civilians in need. The Saudi-led coalition has blocked land, sea and air routes. This has drastically disrupted the passage of humanitarian aid. However, the coalition argues that the blockade is necessary to stop the supply of arms and ammunition to the Houthis. As the coalition is acting at the consent of the host state, it is the duty of the Hadi government to make sure all the humanitarian assistance reaches the needy. Moreover, apart from the international humanitarian law, human rights law also plays a key role in non-international armed conflict. The indiscriminate attacks on civilian properties, hospitals, schools, etc., amounts to war crimes (Rule 158, ICRC Customary IHL). Attacks on the food market and causing disruption of clean drinking water is distinctly prohibited under Article 11 and 12 of ICESCR. Human rights organisations across the globe have held the Saudi-led coalition to be accountable for the violation of humanitarian laws and causing disruption of peace and harmony in Yemen. Referring to the appalling healthcare system Human Rights Watch Organisations has expressed deep concerns over the reports of human rights organisations, namely the International Committee of Red Cross and Doctors without borders. CONCLUSION What is happening in Yemen greatly concerns the world at large as it raises regional tensions. The conflict is also seen as a proxy war between the Shia-ruled Iran and the Sunni-ruled Saudi, who are both supporting the opposite sides by providing them with equipment and technology. Yemen is in need of humanitarian aid more than ever as the deadly coronavirus is rampantly taking over a major part of the population. Yemen’s conflict will be difficult to resolve as all the major parties have unique interests and internal divisions. The situation in Yemen will only deteriorate if all the nations do not intervene to bring both the State and Anti-State actors at peace. International organisations must play a more decisive role in the exertion of international humanitarian laws.
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9/18/2020 Right to Have Rights - A Look into the Gross Violation of Human Rights in EritreaRead NowThis article has been authored by Devarshi Mohan and Sayan Chandra, III-year students at Gujarat National Law University, Gandhinagar. INTRODUCTION Eritrea gained independence from Ethiopia in 1993. Since its independence, Eritrea has constantly been at war with Ethiopia which coupled with rampant corruption and a lack of respect for the human rights of its citizens has left the country in ruins. The year 2018 marked the end of the excruciating war between the two nations. The end of the war ushered in a new hope that the situation in the country might finally improve. However, to the contrary, the situation in the country has worsened. Despite the utter lack of respect for the human rights of its citizens, ironically Eritrea was made a member of the United Nations Human Rights Council in 2018. With Eritrea failing to provide the basic amenities to its people, it is time to reiterate the duty of a state to work towards the betterment of its citizens as proposed by some political theories such as Aristotle’s theory of good governance. This theory propounds that the aim of a government should be to work towards the well-being of its citizens. The same has been reiterated by the United Nations on numerous occasions. Promotion and respect of human rights is not only a ground norm under Article 1(3) of the UN Charter but also a principal duty of all states. It has been laid down in the Charter of Economic Rights and Duties of States whereby respect for human rights and prevention of coercive policies under Article 16 of the same is an essential part. All of these duties are being flouted by Eritrea in the name of compulsory military service, incommunicado exile, close to no freedom of speech and expression, extra-judicial killings, indefinite imprisonment, no democratic setup and arbitrary military rule. The systematic violations by not enforcing their constitution and thus flouting the civil liberties of the citizens contravenes with Eritrea’s obligations under the ICCPR. In this background, this article analyses what the international community should do and can do to protect such flagrant violations. A LOOK INTO THE VIOLATION OF HUMAN RIGHTS IN THE COUNTRY The state of freedom of expression in the country is abysmal. According to a report on freedom of press in the world, Eritrea ranks 178 out of 180 countries. To make things worse, Eritrea has had no independent press since 2001. It has been estimated that since 2001 around 69 journalists have been arbitrarily arrested without a fair trial. It is needless to reiterate that the fuel for Eritrean government’s repressive tactics have been the silencing of independent media, critical voices and the perpetual state of emergency followed by the complete absence of rule of law. The mandatory national service in Eritrea has been compared to “enslavement”. It is also one of the primary reasons why young Eritreans try to flee from their country as people are stripped of their natural living standards. Despite the abject poverty in the country, the government is not working to improve the economy and generate employment. Instead, it is trying to establish an autocratic constitution-less rule, rampant with human rights violations. Instead of working towards spearheading the economy and generating employment, the Eritrean government has tried to establish an autocratic constitution-less rule, rampant with human rights violations. ERITREA'S FAILURE TO ADHERE TO INTERNATIONAL LAW AND TREATY OBLIGATIONS AND WHAT TO BE DONE TO PREVENT IT The situation has only worsened owing to a complete exclusionary policy adopted by the government. Eritrea has shut access of major human rights organisations to the country. It has even prevented UN Special Rapporteur from entering the country by denying him the basic visa by playing the trump card of sovereignty. Eritrea, as a member of the UN Human Rights Council, has agreed to coordinate with the functioning of the council. Hence, it is the duty of Eritrea to respect and coordinate with the council who, vide resolutions 26/24 and 29/18, have formed a special commission to investigate the systematic and widespread gross human rights violation. However, the Eritrean government has time and again failed to adhere to its international obligations and continues to oppress its citizens with a blatant disregard towards their human rights. Now, the question arises whether Eritrea can be bound to grant access to such special commissions from the UN? The answer lies in the numerous Human Rights Resolutions, 12/2, 24/24,36/21, whereby any act of intimidation or reprisal against Special Procedure Mandate Holders is discouraged and nations are bound to coordinate with them for the promotion of human rights. Principally, every nation has the right of sovereignty to exclude other international players from interfering with its domestic governance. However, that sovereign right is limited, the moment one subscribes to the ideals of human rights protection under the OHCHR. Additionally, even the UN can intervene on humanitarian grounds under chapter VII of the UN Charter. The concept of humanitarian intervention and the Responsibility to protect as evolved by the UNGA collectively expresses the will of the world community that in case of a violation of human rights, a violation of a state’s sovereignty can be justified. It has been reiterated by the ICJ in the case of Gambia v. Myanmar that human rights are Jus Cogens norms, and a threat to human rights anywhere is a threat to human rights everywhere, thereby giving a cause of action to the entire world to prevent such blatant violations. Therefore, it is imperative that the international community takes a collective effort towards enforcing a situation of normalcy with respect to human rights in Eritrea. The government of Eritrea has been firm on its stance, putting forth that no situations have arisen which require such a special procedure by the OHCHR against it. However, the report of the OHCHR suggests otherwise. The report puts forth that with the mandate in place, many agencies and citizens in Eritrea have come forth to voice their opinions on human rights violations, displaying the grave nature of the crisis. It is needless to mention that with the present situation going out of hand, sanctions can be an option which the UN and other nations can explore. However, such a step may end up worsening the situation while considering the pre-existing economic condition of the state. A practical manifestation of the same can be seen in the case of Iran v. USA, where the ICJ has highlighted the downside of brutal sanctions. This additionally raises the question as to whether economic sanctions are a remedy to human rights violations at all. As, in situations where the nation is itself in a political and economic breakdown, economic sanctions not only burden the treasury of the nation but also impact the innocent citizens and thereby making the citizens face the grunt of unruly government regimes. The last resort for the UN in such a situation would be to exercise its responsibility to protect under the G.A. Res. 60/1, whereby the UN strives to narrow the gap between the states’ pre-existing obligations for the observance of human rights and the reality faced by the population of the states. It is embodied in the principle of responsibility to protect that, in cases where the national authorities fail to observe human rights or prevent the commission of crimes against humanity, it is the duty of the international community and thereby the Security Council to use diplomatic and peaceful measures to prevent such violations. The UN Human Rights Council in pursuance of this responsibility has been trying to send diplomatic missions and peaceful commissions to help the government settle the matter. However, the Eritrean government has time and again turned them down along with violating their own national responsibility to protect. If the situation continues, which it is, it is time for the Security Council to take the much-required collective action citing the gravity of the situation and the multitude of people suffering in the nation. In such a case, the nation cannot be allowed to make use of their sovereignty trump card, as the sovereignty of any state lies with the people and especially so after Eritrea has declared itself a people’s democracy. CONCLUSION Where human rights are violated in the absence of a democratically elected government, it is the sovereignty of a nation itself which is harmed and needs to be cured by the collective action of the global community. This is particularly true in this case as the Eritrean government has not been democratically elected thereby not qualifying to be a de facto government. As held in the Tinoco Claims Arbitration, a government to claim sovereignty has to be a de facto government for which it “must maintain a peaceful administration, with the acquiescence of the people”. It is undeniably true that a government doesn’t have to be democratic in nature to be a de facto government in the eyes of law. But the maintenance of peaceful administration is essential which is being blatantly ignored by Eritrean government thereby making it not a de facto government. Further, it is the duty of the Eritrean government to respect the principles of democracy enumerated by the people of Eritrea in its first independent constitution. Therefore, where the government fails to administer the basic needs of its citizens, it should not be allowed to use the sovereignty trump card to prevent a peaceful diplomatic humanitarian intervention into the nation. In a nation where the acquiescence of the people is flouted by the gross violations of human rights, the government cannot be allowed to claim itself as a de facto government and wear a cloak of political independence and sovereignty to evade its duty to protect the basic human rights of its citizens. It is a matter of right of the citizens of Eritrea to claim their human rights to be respected by the government of their nation. The citizens should have the say as to whether an intervention is required or not. In the given circumstances, it seems the citizens are shouting out the answer loud enough. Therefore, it is but a cry of the hour to remind the Eritrean government as well as the global community of their duty to restore normalcy in terms of human rights conditions in the nation. 9/14/2020 Diving Into The Enrica Lexie Case (Italy V. India): A Critical Analysis Of The Recent AwardRead NowThis article has been authored by Nalinaksha Singh and Ridhima Bharadwaj, third-year students at Rajiv Gandhi National University of Law, Punjab pursuing the B.A., LL.B. (Hons.) course.
Introduction: India and Italy have enjoyed cordial relations for decades. However, the Enrica Lexie case[i] put a heavy strain on the relationship between the two countries. The dispute began in 2012 and has recently been put to rest with a landmark judgement by the Permanent Court of Arbitration (hereinafter PCA) through an Arbitral Award. The PCA established the Tribunal for the purpose of inter-state arbitration proceedings between the two nations, therefore, the Arbitral Award is enforceable, final and binding. This article will analyse in detail the brief facts of the event that occurred on 15th February 2012, the legal arguments from both States regarding the immunity of the marines and jurisdiction for the case, as well as the ruling provided by the PCA. Facts of the Case: On 15 February 2012, around 20.5 nautical miles off the Indian coast and within the Indian Exclusive Economic Zone (hereinafter EEZ), an oil tanker with the Italian flag named “Enrica Lexie” was present. The issue at hand concerns two Italian Navy officials, aboard the Enrica Lexie on official duty, who fired and killed two Indian fishermen aboard an Indian fishing vessel named the “St. Antony”, seemingly mistaking them for pirates functioning close to the Kerala Coast. After reaching the Kochi port (3 hours later), the Italian marines namely, Massimiliano Latorre and Salvatore Girone were arrested and charged with murder under Section 302[ii] of the Indian Penal Code, 1860 (hereinafter IPC).[iii] The marines were detained in India (without formal charges) for four and two years respectively. Legal History: To proceed with the prosecution of the marines, India had already established a specifically designated court, as per the orders of the Supreme Court, to decide upon the matter of application of jurisdiction. India’s National Investigation Agency (NIA), had already charged the two Italian marines with murder, attempt to murder, mischief and common intent under the IPC. Taking reference from Annex VII (process for ad-hoc arbitration) of the United Nations Convention on the Law of the Sea,[iv] 1982 (hereinafter UNCLOS), Italy took India to the International Tribunal for the Law of the Sea (hereinafter ITLOS) in 2015 to appeal for the two marines to return to their own country as the trial procedure continues. In its decision on 24 August 2015, the ITLOS ordered suspension of all domestic suits and trials in both the countries associated with the Enrica Lexie matter and directed them against taking any action that “might jeopardize or prejudice the carrying out of any decision which the arbitral tribunal may render”.[v] Consequently, a specifically assigned Arbitral Tribunal was established with five members on 6 November 2015.[vi] Core Legal Considerations: The case at hand discusses the very vital issue of jurisdiction over vessels on the high seas. The dispute between the parties arose as a result of Italy’s claims of exclusive jurisdiction as flag State and demand of functional immunity for its naval officials since they had acted to preserve Italian interests when the incident occurred. India, on the other hand, maintained that the issue is concerned with the killing of the two innocent fishermen and demanded jurisdiction of the case as the flag State of the St Antony. Jurisdiction: In the principal issue of the dispute, India argued for jurisdiction over the case on the basis of its domestic legislations that grant its courts the power to initiate penal prosecution against a person (including a foreigner) for a crime committed on any ship registered in India, wherever it may be (Sections 3[vii] and 4[viii] of IPC and Section 188[ix] of the Code of Criminal Procedure, 1908). In contrast, the government of Italy argued with reference to the UNCLOS. For instance, Article 97[x] of UNCLOS which gives sole jurisdiction over penal/ disciplinary proceedings to the flag State. Further, Italy claimed that India had breached numerous key provisions, particularly Article 97(1)[xi] by initiating criminal prosecution against the Italian marines and Article 97(3)[xii] by intercepting the Italian oil tanker between February and May 2012, and probing those aboard. Additionally, Italy made a plea under Article 92[xiii] which grants exclusive jurisdiction to flag States over their ships while on the high seas. Killing of the Fishermen and Immunity of the Marines: Throughout the bilateral discussions between the party countries, the major concerns that arose were regarding immunity for the Italian marines from Indian criminal prosecution. As Italy tried to establish the immunity of the two marines, India was staunch on the two being prosecuted under its domestic criminal laws. Italy requested the arbitral tribunal to adjudge that India was in breach of its duty to respect the functional immunity of the marines as Italian State officers performing official functions by proclaiming and continuing prosecution under domestic criminal laws. This action would constitute a violation of the UNCLOS under Articles 2(3)[xiv], 56(2)[xv], 58(2)[xvi] and 100.[xvii] In response to the submissions made by Italy, India in turn pointed out the violations of the former by shooting at the St Antony and killing two Indian fishermen. India’s argument was based on the reasoning that even if the immunity of the marines were to be accepted, the immunity exception of “territorial tort” would fit on this matter since the alleged crime was “committed against Indian nationals, on an Indian flagged boat, which is assimilated to India’s territory for the application of criminal law, and the marines have been found on India’s territory”.[xviii] India further went on to claim that Italy had infringed it’s sovereign rights under Article 56[xix], and violated its duty to have due regard for India’s rights (as the coastal State) over its EEZ as per Article 58(3)[xx] of the UNCLOS. Navigation: The next key contention revolved around the issue of navigation. Italy argued that by guiding the Italian oil tanker to move into India’s territorial waters, India had infringed Italy’s freedom of navigation guaranteed Article 87(1) (a)[xxi] of the convention and its duty to seek Italy’s cooperation in the repression of piracy, violating Article 300[xxii] read with Article 100[xxiii]. Further, India had infringed Italy’s right to exclusive jurisdiction over its ship, protected by Article 92.[xxiv] In response, India claimed that Italy had breached India’s freedom and right to navigation guaranteed Articles 87[xxv] and 90[xxvi]. Further, Italy had also breached India’s right to reserve its high seas for peaceful purposes under Article 88[xxvii] of the UNCLOS. The Judgement The highly awaited Arbitral Award came on 2 July 2020 and dealt with the various issues raised before the five-bench Arbitral Tribunal (hereinafter AT) by both parties. Firstly, on the matter of jurisdiction, the bench decided that the AT possesses jurisdiction over the dispute. This was in response to the detailed objections by India to its jurisdiction on the case. It was also decided that the AT holds jurisdiction to deliberate upon the matter of the immunity of the Marines. Thus, none of the pleas India levied against Italy regarding jurisdiction and rights of a coastal State over its EEZ were accepted by the AT. Secondly, with respect to the immunity of the Italian marines, the AT decided by three votes in favour that, “Marines are entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines”.[xxviii] Moreover, it declared that India is required to cease its criminal prosecution against the marines. Thirdly, for the issue of navigation, the AT unanimously decided that the conduct of the Italian marines and, thus, Italy had infringed India’s freedom of navigation as per Articles 87(1) (a)[xxix] and 90[xxx] of the UNCLOS. Further, it was stated that India did not commit any act which could violate any provisions of the convention with regards to freedom of navigation on the high seas, status of ships, penal jurisdiction in matters of dispute, and cooperation for repression of piracy.[xxxi] Lastly, the AT held that India’s case qualifies for compensation regarding loss of life, physical harm, material damage to property involving the St. Antony as well as any moral injury to which the captain and other crew members of the vessel were subjected to, which cannot be compensated through restitution.[xxxii] The amount of this compensation would be mutually decided by both parties. Critical Analysis: The core issues of the Enrica Lexie case, i.e. the question of jurisdiction over the case and immunity of the Italian officials from Indian criminal jurisdiction, are intertwined with one another. While deciding on the issues at hand, the tribunal took into consideration a number of principles of international law. The immunity of the two marines was based on the basic principle of customary international law that grants ratione materiae i.e. functional immunity of State officials (regardless of the position they hold in the power hierarchy of the State, and also incorporates armed forces’ members on official duty) from foreign criminal jurisdiction pertaining to the acts they perform in an official capacity. The basis for this decision was that, according to the AT, “the marines are State officials who were acting in their official capacity during the incident”. Therefore, the tribunal determined that irrespective of the fact that the acts of the marines were illegal, the evidence demonstrated that when the episode occurred, the officials were subjected to a fear of a piracy risk and thus, exercised their official functions as members of the Italian Navy and of a VPD (Vessel Protection Detachment), and were not on Indian territory when they committed the acts at issue.[xxxiii] These conclusions made by the tribunal are inconsistent because they fail to clearly distinguish the alternative possibility that the marines were capable of committing an act, even if they were aboard the Enrica Lexie, outcomes of which could be experienced in Indian territory without its consent. Simultaneously, if the AT is so certain of the fact that ships cannot be integrated with the national territory of the flag State, then the Enrica Lexie cannot be integrated with Italian territory, thus, nullifying the marines’ immunity. Furthermore, even if the marines are considered State officials, they were deployed in a commercial vessel and therefore, cannot be accorded with State immunity from local penal jurisdiction. The decision made by the AT is vulnerable and stands on shaky grounds. This is highlighted by the dissent offered by two justices on the tribunal. Dr P.S. Rao, a member of the bench, stated in his dissent: “I entirely disagree with its (AT’s) finding that the marines are entitled to immunity from Indian jurisdiction, even when they were on a commercial (cargo) vessel, under private ownership, whereas immunity under general international law is reserved in respect of a ship used only on government non-commercial service”.[xxxiv] Similarly, Judge Robinson also clarified in his opposition that,[xxxv] for the marines to be granted immunity, Italy must establish that while serving on the ship, they persisted as employees of the government and not of the ship-owners. Further, he states that since there is no specific agreement for granting immunity to officials of a foreign State between the two parties, the marines are not entitled to State immunity. The immunity granted to the marines and their subsequent protection from criminal prosecution in India for the killing of two innocent fishermen, is contentious to say the least.[xxxvi] Conclusion: The Way Forward As good international citizens, both nations must comply with the tribunal’s award and work in full co-operation on the matter from now on. From Italy’s perspective, the award is a win. All through the dispute, it wanted to ensure its marines were tried for their offence in Italy, and not India- this has been achieved. Italy will now continue its domestic proceedings against the two marines, although actual conviction of the officials by any Italian court is a rare possibility. For India, the judgement is a disappointing loss and marks an end for all hopes of justice for the two fishermen. The only satisfaction for New Delhi is the compensation Rome must pay for violating two provisions of the UNCLOS. Now, India must make certain that Italy pays fully for the loss of life and suffering in this matter. Further, India must ensure Italy makes good on its promise of trying the two marines in a fair manner under its domestic laws and the Indian government must show no laxity in securing justice for its fallen citizens- even in a foreign court. Any consideration regarding trade or relations with the European Union (which has stood beside Italy through the entire trial), must be put aside.[xxxvii] Resolving the sour relations between Italy and India is a long road but it begins with both nations honouring their ends of the recent judgement. Endnotes: [i] Enrica Lexie (Italy v. India), PCA Case Repository, 2015-28 (Hereinafter PCA). [ii] Indian Penal Code, No. 45 of 1860, § 302, Pen. Code (2020) (Hereinafter IPC). [iii] PCA, supra note 1. [iv] United Nations Convention on the Law of the Sea, annex. VII, Dec. 10, 1982, 1833 U.N.T.S. 397 (Hereinafter UNCLOS). [v]Enrica Lexie (Italy v. India), Case No. 24, Order 2015/5 of July 24, 2015, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.24_prov_meas/24_published_texts/2015_24_Ord_24_Jul_2015-E.pdf. [vi] Devirupa Mitra, Enrica Lexie: In Setback for India, Tribunal Says Country's Courts Can't Try Italian Marines, The Wire (July 3, 2020), https://thewire.in/external-affairs/enrica-lexie-arbitral-tribunal-italian-marines (Hereinafter Mitra). [vii] IPC, supra note 2, § 3. [viii] IPC, supra note 2, § 4. [ix] Code of Criminal Procedure, No. 2 of 1974, § 188, Code Crim. Proc. (2020). [x] UNCLOS, supra note 4, art. 97. [xi] UNCLOS, supra note 4, art. 97(1). [xii] UNCLOS, supra note 4, art. 97(3). [xiii] UNCLOS, supra note 4, art. 92. [xiv] UNCLOS, supra note 4, art. 2(3). [xv] UNCLOS, supra note 4, art. 56(2). [xvi] UNCLOS, supra note 4, art. 58(2). [xvii] UNCLOS, supra note 4, art. 100. [xviii] V. Venkatesan, Enrica Lexie: Did India Lose Case Against Italy Because of Lapses By its Own Supreme Court?, The Wire (July 5, 2020), https://thewire.in/law/enrica-lexie-india-case-arbitral-tribunal-dissents-supreme-court (Hereinafter Venkatesan). [xix] UNCLOS, supra note 4, art. 56. [xx] UNCLOS, supra note 4, art. 58(3). [xxi] UNCLOS, supra note 4, art. 87(1)(a). [xxii] UNCLOS, supra note 4, art. 300. [xxiii] UNCLOS, supra note 4, art. 100. [xxiv] UNCLOS, supra note 4, art. 92. [xxv] UNCLOS, supra note 4, art. 87. [xxvi] UNCLOS, supra note 4, art. 90. [xxvii] UNCLOS, supra note 4, art. 88. [xxviii] PCA, supra note 1. [xxix] UNCLOS, supra note 4, art. 87(1)(a). [xxx] UNCLOS, supra note 4, art. 90. [xxxi] Mitra, supra note 6. [xxxii] PCA, supra note 1. [xxxiii] Venkatesan, supra note 18. [xxxiv] Venkatesan, supra note 18. [xxxv] Venkatesan, supra note 18. [xxxvi]Vivek Katju, India must not cast anchor in ‘Enrica Lexie’, The Hindu (July 6, 2020), https://www.thehindu.com/opinion/lead/india-must-not-cast-anchor-in-enrica-lexie/article31996616.ece. [xxxvii] Lessons for India: On Italian marines case, The Hindu (July 4, 2020), https://www.thehindu.com/opinion/editorial/lessons-for-india-the-hindu-editorial-on-italian-marines-case/article31984135.ece. This article has been authored by Gursehaj Singh, a fourth-year student at Jindal Global Law School, O.P. Jindal Global University pursuing the B.B.A., LL.B. (Hons.) course.
Introduction In recent times, climate change advocacy has taken various forms, one of which is ‘sea level rise’. The phenomenon of sea level rise can have serious detrimental effects, particularly for low-lying coastal areas and small island states, as it can result in substantial territorial loss. 1 Since States are the primary actors in the field of international law, it is necessary to understand the interplay between sea level rise and the international law of the sea. According to the Report of the International Law Commission, sea level rise can have legal implications in three areas, namely “law of the sea, statehood and the protection of persons affected by sea level rise." 2 This article intends to critically analyze these legal implications through a doctrinal approach, i.e. by looking at the relevant judicial discourse, the underlying international legal framework and other legal sources. Does Sea Level Rise Necessitate the Fixing of Maritime Entitlements? Sea level rise results in a natural shift of baselines as they retreat landward. It may also lead to the disappearance of baselines, which are situated on islands, rocks and low tide elevations. 3 The current legal framework on baselines is based on the traditional principle of “the land dominates the sea”. 4 This was reiterated in the Final Report of The International Law Association Baselines Committee, which noted that “the normal baseline is ambulatory”. 5 However, the Report also acknowledged that the current legal framework on normal baselines does not solve the problems posed by sea level rise. 6 This is because the travaux préparatoires of the United Nations Convention on the Law of the Sea (“UNCLOS”) did not foresee the uncertainty, which sea level rise could cause in the near future. In this regard, the current debate is whether international law should adapt to the changing geographical circumstances and embrace a ‘fixing baseline’ framework. At this juncture, I argue that UNCLOS can depart from the principle of ‘the land dominates the sea’ and incorporate a framework, which freezes maritime entitlements. The freezing of maritime entitlements will be in accordance with the principles of certainty and stability, which are the primary objects of maritime delimitation. 7 It is further argued that travaux préparatoires serves, as a supplementary source of interpretation 8 and thus, due regard must be given to the primary source, i.e. the object and purpose of the UNCLOS. The International Court of Justice (“ICJ”) has also “consolidated the importance of predictable, objectively determined criteria for delimitation, as opposed to subjective views”. 9 In the 2006 Award in the Barbados/Trinidad and Tobago arbitration, the Arbitral Tribunal noted: “the search for an approach that would accommodate both the need for predictability and stability within the rule of law and the need for flexibility in the outcome that could meet the requirements of equity resulted in the identification of a variety of criteria and methods of delimitation.” 10 Sea Level Rise and Maritime Boundary Treaties The doctrine of rebus sic stantibus is enshrined in Article 62 of the Vienna Convention on the Law of the Treaties (“VCLT”). Article 62(2)(a) of the VCLT states: “A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary”. 11 In the context of maritime boundary treaties, there are two issues that need to be answered. First, whether the rebus sic stantibus doctrine applies to maritime boundary treaties and second, whether sea level rise could be regarded as a fundamental change of circumstances in the context of the provision. With respect to the first issue, it is argued that maritime boundaries do not come under the ambit of ‘boundary’ in Article 62(2)(a) of the VCLT. In Greece v. Turkey (Agean Sea Continental Shelf), the ICJ noted: “whether it is a land frontier or a boundary line in the continental shelf that is in question, the process is essentially the same, and inevitably involves the same element of stability and permanence, and is subject to the rule excluding boundary agreements from fundamental change of circumstances” 12 Thus, significant reliance must be placed on the object and purpose of the UNCLOS i.e. to maintain stability and finality of maritime boundaries. In Temple of Preah Vihea, the ICJ noted: “When two countries establish a frontier between them, one of the primary objects is to achieve stability and finality” 13 This was reaffirmed by the Arbitral Tribunal in the Bay of Bengal Maritime Boundary Arbitration, where it stated: “neither the prospect of climate change nor its possible effects can jeopardize the large number of settled maritime boundaries throughout the world.” 14 The Arbitral Tribunal recognized that the stable and definitive character of maritime delimitations is essential to ensure peaceful relationships between States. 15 It is argued that maritime boundary agreements must be subject to the principle of pacta sunt servanda. 16 With respect to the second issue, it is argued that sea level rise does not constitute a ‘fundamental change of circumstances’ for a State to unilaterally terminate or withdraw from a treaty. For a ‘fundamental change of circumstances’ to occur, the effect of the change must affect the essential basis of the treaty and must radically transform the extent of obligations still to be performed under the treaty. 17 The determination whether a ‘fundamental change of circumstances’ has occurred depends on the facts of each case. 18 It is argued that the precise effects of sea level rise are difficult to predict as of the present day. Due to this, it cannot be said that sea level rise radically transforms the extent of the obligations under a maritime boundary treaty. 19 Implications on Statehood and Human Rights Because of sea level rise, small island states face the ultimate threat of full inundation and loss of their state territory. The legal aspect to this issue can be located to Article 1 of the Montevideo Convention, which establishes the four criterion of statehood. 20 One of the criteria of statehood is that of a ‘defined territory’. In a situation where an island state has lost its territory because of sea level rise; the lack of territory is not necessarily permanent. 21 In other words, it is argued that the inundation of state territory because of sea level rise would only amount to a de facto lack of territory, and not de jure. A lack of territory becomes an alarming concern for the right of self-determination, due to the absence of autonomy and independence. 22 Sea Level Rise would also result in the forced displacement of people if the state’s territory becomes completely uninhabitable. This would further create obstacles in the social and cultural development of the people. 23 Amidst these concerns, the protection and enforcement of human rights will be at stake. Conclusion In conclusion, sea level rise can have legal implications with respect to law of the sea, statehood, and protection of person affected by sea level rise. From the perspective of the law of the sea, the fixing of baselines or maritime zones is a demanding solution. The fixing of baselines will be in accordance with Article 5 of the UNCLOS. The solution urgently calls for state practice so that it can be created as a new norm under customary international law. Maritime boundary treaties come within the ambit of the exclusion given in Article 62(2)(a), as observed in the Agean Sea Continental Shelf Case. Sea level rise can potentially result in full inundation of small island states, which may ultimately lead to loss of state territory. In such a scenario, the criterion of a ‘defined territory’ under Article 1 of the Montevideo Convention must be relaxed. Endnotes: 1 International Law Association Committee on Baselines under the International Law of the Sea, Final Report, Sofia Conference, 30, (2012) 2 UN General Assembly, Report of the International Law Commission, Seventieth Session, A/73/10, 326, (2018). 3 Sarra Sefrioui, Adapting to Sea Level Rise: A Law of the Sea Perspective, in Andreone G. (eds) The Future Of The Law Of The Sea, 3-22, Springer, Cham, (2017) 4 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), 20 February 1969, I.C.J. Reports 1969, p.3. 5 Supra, note 1, at 31. 6 Ibid. 7 Davor Vidas, Sea-Level Rise and International Law: At the Convergence of Two Epochs, Climate Law, Vol. 4, No. 1-2, 70-84, (2014). 8 Article 32, United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations Treaty Series, vol. 1155, p. 331 9 Supra, note 7, at 76. 10 Award of the Arbitral Tribunal in the Matter of an Arbitration between Barbados and the Republic of the Trinidad and Tobago, 11 April 2006, PCA, 2004-02. 11 Article 62(2)(a), United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations Treaty Series, vol. 1155, p. 331 12 Aegean Sea Continental Shelf (Greece v. Turkey), Jurisdiction, Judgment, 19 December 1978, I.C.J Rep 3 13 Temple of Preah Vihea (Cambodia v. Thailand), Merits, Judgment, 15 June 1962, I.C.J Rep 6 14 Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India (Award), 7 July 2014, PCA, 2010–6, 69 15 Ibid. 16 Snjólaug Árnadóttir, Termination of Maritime Boundaries Due to a Fundamental Change of Circumstances, Utrecht Journal of International and European Law, Vol. 32, No. 83, 94-111, 102, (2016). 17 Article 62(1), United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations Treaty Series, vol. 1155, p. 331 18 Advisory Opinion No. 4, Nationality Decrees Case Issued in Tunis and Morocco, 4, PCIJ, 7 February 1923. 19 Supra, note 16, at 103. 20 Article 1, Montevideo Convention on the Rights and Duties of States, 26 December 1933. 21 Frederick von Paepcke, Statehood in Times of Climate Change: Impacts of Sea Level Rise on the Concept of States, (2014). 22 Catherine Blanchard, Evolution or Revolution? Evaluating the Territorial State-Based Regime of International Law in the Context of the Physical Disappearance of Territory Due to Climate Change and Sea-Level Rise, Vol. 53, Cambridge University Press, (2015). 23 Ibid. This article has been authored by Ritika Goyal, a student at National University of Study and Research in Law, Ranchi, pursuing B.A.LL.B. (Hons.) course. This article was originally published in Jurist by University of Pittsburgh. On 29th April, Côte d’Ivoire announced its withdrawal from the special declaration of jurisdiction provided under Article 34(6) of the ‘Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples’ Rights’. Article 34(6) of the Protocol reads that “the State shall make a declaration accepting the competence of the Court to receive cases under article 5(3) of this Protocol. The Court shall not receive any petition under article 5(3) involving a State Party which has not made such a declaration.” It is optional for the Member Countries to submit before the jurisdiction of the Court under Article 5(3). Article 5(3) of the Protocol states that “The Court may entitle relevant Non Governmental Organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34 (6) of this Protocol.” Without a declaration under Article 34(6), the African Court on Human and Peoples’ rights is not competent to receive any petition under Article 5(3). As a result of withdrawal by Côte d’Ivoire, Non-Governmental organizations and individual citizens are now incompetent to institute cases directly before the African Court. Firstly, it is important to note that out of thirty Member States, only ten states (Benin, Burkina Faso, Côte d’Ivoire, Ghana, Gambia, Malawi, Mali, Rwanda, Tanzania, and Tunisia) had made a special declaration under Article 34(6). However, in the last six months, Côte d’Ivoire has become the third country to announce an end to NGO and individual direct access to the Court. Now, out of thirty Member States, only six are left, with Rwanda exiting in 2016. Here, it needs to be observed that neither the African Charter on Human and Peoples’ Rights (“the Charter”) nor its Protocol contain provisions regarding withdrawal from Article 34 of the Protocol. The Protocol is silent on the same. However, after Rwanda’s withdrawal, which was upheld by the Court in the case of Ingabire Victoire Umuhoza v. Rwanda, it looks like a domino effect has begun. Moreover, the African Charter on Human and Peoples’ Rights’ is distinct from the statutes of International Court of Justice, the European Court (before the entry into force of Protocol No. 11) and the Inter-American Court, as these provide denunciation clauses in their Protocols. From this omission, the States Parties’ intention to disallow denunciation from the African Charter, can be inferred. This is done to confer sanctity on their commitment. Furthermore, during the preparation of the Charter, a number of States (Congo, Nigeria, Central African Republic) had proposed to insert a denunciation clause however, that proposal was rejected by the OAU Ministers’ Conference. While the Côte d’Ivoire and other States have not withdrawn from the Charter itself, nonetheless withdrawal from the special declaration under Article 34(6) has effectively restricted the functioning of the African Court. When viewed from a human rights perspective, it is extremely disappointing and will have far-reaching negative implications. Cote d’Ivoire’s withdrawal outrightly deprives individuals and NGOs of the right they hitherto had to bring before the African Court a case against the State. This is a significant consequence for the human rights judicial protection system established by the Protocol. Secondly, it is pertinent to understand the developments that led to the withdrawal by the Government. The announcement of withdrawal came just after the decision was declared by the African Court on Human and Peoples’ rights, in the case of Soro & Others v. Côte d’Ivoire. Guillaume Soro, Former Prime Minister, Commander of a rebel force and Presidential Candidate, was sentenced to 20 years in prison for embezzlement by the Government. However, this decision was stayed by the Court. Immediately, Cote d’Ivoir withdrew its declaration citing the Court’s “grave and intolerable actions,” which violate its sovereignty and “undermine the foundations of the rule of law by weakening its justice system.” Time and again, the Government of Côte d’Ivoire has been accused of detaining the opposition leaders on flimsy grounds, silencing the dissenters by arbitrary arrests and violating the political and human rights of the individuals. Here, the African Court on Human and People’s Rights played an instrumental role in providing respite to the citizens of Côte d’Ivoire. Earlier too, in APDH v. Côte d’Ivoire, the Court held that Côte d’Ivoire violated various human rights obligations by establishing a partisan election monitoring body that lacked the necessary independence and impartiality, thereby violating citizens’ rights to political participation and equal protection. Amnesty International had already warned that the human rights situation in Cote D’Ivoire would deteriorate further during the 2020 Presidential Elections. Human Rights Watch has also stated that the Government, on a number of occasions, has prohibited opposition rallies, detained opposition politicians and civil society activists who organized anti-government demonstrations. Adding to the already fragile situation, withdrawal by the Government comes as a major ‘frontal attack on the regional human rights system’. The Ivorian authorities have been continuously using repressive legal provisions to crack down on dissent. Criminal Code was amended in 2015 to accommodate vague and ambiguous provisions for “sharing false news where that results or could result in” “disturbance to public order” and “causing offense to the president or vice-president.” Journalists, political activists, human rights defenders, and anyone who expresses dissent is arbitrarily arrested and detained, under the garb of these dubious provisions. Another example would be Article 25 which provides any attempt to demoralize the Army or the Nation, would amount to treason and carries a life sentence. It’s not unknown that grave human rights violations are committed by security forces in Côte d’Ivoire. These provisions directly attack journalists and human rights defenders working on these controversial issues. The extinguishment of the right to hold the Government accountable for human rights violations is nothing but a well-planned strategy to silence the dissent. Furthermore, if NGOs and individuals are not allowed direct access to the Court, then only African States and African Commission on Human and Peoples’ Rights (ACHPR) can file cases in the Court under Article 3(1) of the Protocol. However, it’s ludicrous to note that none of the States have filed any case. And only three cases have been referred by the Commission. Here it is pertinent to note two things. Firstly, only a few States gave direct access to NGOs and individuals, who were filing the major amount of complaints, and secondly, maximum complaints originated from countries like Rwanda, Tanzania and Cote D’Ivoire. Now, withdrawal by these States would not only be a major blockade in the exercise of human rights but also mean that in the coming time, the caseload of the Court will be reduced significantly and without the adequate number of cases, the Court’s authority to adjudicate and function could be seriously imperiled. It is important to focus on this deplorable situation and take proactive steps so that a forthcoming major human rights crisis in Africa can be avoided. |
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