2/24/2022 One Small Step For Man, One Giant Leap For Exploitation: A Note on the Legitimacy of Lunar MiningRead NowThis article is authored by Priankita Das, a Fourth Year Student of Law at Dr. Ram Manohar Lohiya National Law University.
Introduction Mankind has been a witness to a colossal number of technological advancements in the course of its evolution. From the first flight by the Wright Brothers in 1903 to the first successful orbital launch by the Soviet Union in 1957, numerous developments have taken place rapidly in a limited course of time. On account of such inventions, it is pertinent for the law to keep pace with the ever-changing dynamics of technological expansion. Against this backdrop, the present article seeks to question the legitimacy of lunar mining with a special emphasis on private players, a topic which has come to light as a consequence of the recent trend of governmental entities and private players exhibiting their intentions of taking the giant leap towards the outer space. In the course of questioning the legitimacy of such activities, the article also takes note of prerequisites present in the International Conventions for the activity of lunar mining and the domestic legislations that have been enacted by States that allow for such activities to be conducted. Lastly, it is concluded that lunar mining can indeed take place – notwithstanding the repercussions that might follow in the economic, social, and political spheres. Drafting of the International Conventions In the present day, five United Nations treaties form the foundation of international space law,; namely, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereinafter “Outer Space Treaty”), the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, the Convention on International Liability for Damage Caused by Space Objects, the Convention on Registration of Objects Launched into Outer Space, and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereinafter “Moon Agreement”). For the purposes of governing commercial activities in the outer space, only the Outer Space Treaty and the Moon Agreement are the dictating Conventions. When these two Treaties were drafted, no regulations or guidelines were provided by the State Members on the aspect of private commercial activities in outer space. This can be attributed to the time period in which the Treaties were drafted, which was an era where there existed no feasibility or possibility of such activities being conducted. Further, Ricky J. Lee in his book titled “Law and Regulation of Commercial Mining of Minerals in Outer Space”[i] provides two possible reasons for the ambiguity present in the Outer Space Treaty and Moon Agreement provisions – firstly, at the time of the drafting of the Outer Space Treaty, only the United States and the Soviet Union were the space-faring countries, and due to the tensions of the Cold War, they naturally disagreed on many matters, one of which may have been the matter of commercial exploitation of lunar resources; secondly, the State Members who drafted the Treaties were of the belief that a general, expansive code would be beneficial in the long run in order to accommodate the evolving space technologies and ventures. Had restrictions been put in place on the activities in the outer space and there came a need for States and private entities to venture out for essential resources, it would have been difficult to conduct such activities without violating the principles of international space law. In addition to the reasons stated above, perhaps it can be stated that due to their birth during the Cold War Era, the Treaties were drafted in consonance with a State-centric international system and did not envisage private entities conducting activities in the outer space as they were yet to enter the field of space law back then. However, with technological innovations in the field of space exploration brought about by both private scientific and commercial giants, the law has failed to keep up with the times. Legitimacy of Commercial Lunar Mining The Outer Space Treaty, which provides the basic framework for international space law, lacks any specific provisions that oust the activity of commercial activities from being conducted. It does contain certain positive law provisions under Article I that provide for the freedom of use and exploration of the outer space, in the interests of all mankind and without any discrimination towards other States. Many debates have emerged on the interpretation of the term ‘use’ provided under Article I of the Outer Space Treaty and whether it includes the activity of exploitation, i.e., lunar mining, within its ambit. A. Inclusion of exploitation under the ambit of “use” under Article I of the Outer Space Treaty The Vienna Convention on the Law of Treaties provides that treaty provisions must be read in their ordinary meaning (Article 31) and that the Preamble of a treaty can be used as a tool to aid in the interpretation of a treaty [Article 31(2)]. The Moon Agreement, which is almost a replica of the Outer Space Treaty, does mention the exploitation of resources on the lunar surface under Article 11(5) wherein it prohibits any such activity from taking place before the establishment of an international regime that shall govern these activities. Being adopted later, the Moon Agreement has modified the terms present in the Outer Space Treaty. Hence, with the use of the term ‘exploitation’ in the Moon Agreement, it can be construed that the term ‘use’ in the Outer Space Treaty envisages the activity of exploitation of lunar resources as well. Moreover, the principle of nulla poena sine lege, which means that there is no penalty without a law, implies that unless there is a prohibition by law on doing an act, it cannot be said to be illegal. Thus, the Outer Space Treaty, by way of ambiguity and lack of penalising provisions, allows the activity of moon mining to be conducted, whereas the Moon Agreement prohibits it in the absence of an international regime. However, if such a regime were established, then exploitation of resources could take place in compliance with the principles of international space law. B. Necessity of an International Regime: Lack of a Binding Nature of the Moon Agreement While debating the necessity of the establishment of an international regime to govern commercial activities in the outer space, it is pertinent to note that the Moon Agreement has been ratified or acceded to only by twenty-two State parties, the majority of whom are not spacefaring nations. For this reason, it is considered a failed Convention and its provisions do not bind the non-signatories of the Moon Agreement to it. Thus, the provision in the Moon Agreement that mandates the establishment of an international regime before the commencement of any exploitation activities is deemed to be inapplicable to most States. However, despite this, many spacefaring and non-spacefaring nations have come up with their own domestic legislations that provide for and govern the exploitation of lunar resources for commercial purposes, thus, giving domestic legitimacy to commercial activities that may be conducted in the outer space. C. Domestic Legislations Encouraging Lunar Mining through its Allowance The United States of America, in 2015, provided legitimacy to commercial activities by private entities on the lunar surface through the enactment of the U.S. Commercial Space Launch Competitiveness Act, 2015. It further provided that any American citizen engaged in such activity shall have the right to own, keep, use, and sell the spoils of such activities, thus, providing the citizens with proprietary rights as well. It must be noted that proprietary rights over any natural resources of the moon have been prohibited by Article 11(3) of the Moon Agreement. However, as previously stated, the binding nature of the Moon Agreement is questionable, and it is yet to be seen how States approach this conundrum if a dispute were to arise. The same proprietary rights have also been provided by Luxembourg to its private mining companies through its Draft Law on the Exploration and Use of Space Resources that was adopted in 2017. It has further gone on to set up a $227 million fund as an incentive to mining companies to establish their offices and make the country the centre for space mining innovation. Thus, though there still exists a lack of an ‘international’ regime, States have come up with their own laws to encourage and enable the practice of commercial activities in the outer space. Conclusion Through the discussions above, it is evident that lunar mining has not been explicitly barred by the Outer Space Treaty and the Moon Agreement. The requirement under the Moon Agreement for an international regime has been attempted to be fulfilled by States through the enactment of domestic legislations that accord legitimacy to commercial activities in the outer space. This legitimacy has also been extended to activities conducted by private players. Such an allowance may lead to concerns of proper appropriation and utilisation of resources, claims of sovereignty and territory over the surface of the moon, and many other things; however, at present, it is yet to be seen how the international community approaches the realm of lunar mining through a legal perspective. [i] Ricky J. Lee, Law And Regulation Of Commercial Mining Of Minerals In Outer Space, 101 (Springer 2012).
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1/25/2022 The Plight of Domestic Migrant Workers amidst Lebanon’s Compounding Crises: A plea to dismantle the Kafala SystemRead NowThis article is authored by Vidya Kakra, Final Year Student of Law, Symbiosis Law School, Noida.
The surge of globalization across the world has led to an escalation in the demand for domestic workers owing to worldwide development affecting the economic, social and political sectors. This demand has driven millions of domestic workers to migrate in search of work outside of their own economically depressed nations, thereby increasing migration. The International Organization for Migration (IOM) World Migration Report 2020 estimates a global population of 272 million international migrants, with about two-thirds of them being labour migrants.. The key factors due to which these workers search for employment outside their own country are financial motivation, poverty and lack of employment opportunities in their home country. Due to this, workers' movements to wealthier economies such as the Middle East and Gulf nations have predominantly increased since the 1970s, owing to the thriving oil industry. Over 250,000 Migrant Domestic Workers (MDWs) are reported to reside in Lebanon, of which the majority of workers are women belonging to neighbouring Arab nations, South-East Asia, and more recently, Africa. Labour migration in Lebanon has contributed significantly to its economic growth by offering an abundance of employment opportunities, notably in construction and domestic work. This has also proven to be a significant benefit for migratory workers, who remit large sums of money home to their family and home countries. While globalisation has aided these workers' migration, it has also frequently placed them in legally and socially vulnerable and employer-controlled situations. The Kafala System, prevalent in Middle East nations, including Lebanon, is one such practice that not only creates circumstances for flagrant human rights violations but also comprehensively establishes a new group of easily exploitable workers. The Kafala (Sponsorship) System The term 'Kafala' is taken from the Islamic doctrine of legal guardianship and means 'to ensure' or 'to look after' in Arabic. This system was initially established with the objective that the state would grant sponsorship permits to the sponsor (Kafeel), who is usually the employer, to recruit immigrant workers with the intention that the sponsor ensured the safety and wellbeing of the migrant worker. However, with the advent of time and commercialisation, this objective of the Kafala system shifted to provide cheap labour during a period of rapid economic expansion in Gulf Corporation Council (GCC) nations - Saudi Arabia, United Arab Emirates, Jordan, Bahrain, Qatar, Kuwait, Oman, and Lebanon. Today, Kafala system has become a mechanism for recruiting migrant workers by creating a foundation for employer-migrant worker relationship through a labour contract and also serves as a tool for managing and controlling labour migration. By tying the entry visa of the migrant workers to an individual employer and making termination of employment and shifting jobs impossible without the employer’s approval, the Kafala system confers excessive powers in the hands of employers, leading the workers to be completely dependent on their Kafeels and lose control over their own life. Domestic migrant workers are the most disadvantaged under a Kafala agreement or contract. One of the reasons is that cohabiting with the employer enhances their level of reliance by affecting their daily subsistence and it exposes domestic workers to exploitation, aggressiveness, and isolation, as well as physical, sexual, and psychological abuse. They are subjected to racial discrimination because they work in jobs that the Lebanese community sees as substandard. Furthermore, migrant domestic workers are least protected among migrants, not only because it is far more difficult to verify what happens "behind closed doors," but also because domestic work is not protected by the country's labour regulations. Lebanon’s International Obligation While domestic laws of Lebanon do not protect domestic migrant workers from exploitation, it must be noted that Lebanon is bound by fundamental principles of International Human Rights Laws as well as International Labour Standards, particularly those conventions that it has signed and ratified. The Universal Declaration of Human Rights (UDHR), 1948 is the basis for most universally recognised human rights such as the right to life, equality, non-discrimination, right to work, freedom of expression and freedom of movement. Some abusive employers force domestic workers to work against their will and prevent them from returning to their home countries. This is incompatible with Article 13 of the UDHR, which provides for the right to free movement and the right to return to one's own country. Similarly, acts of racial discrimination such as racist speech, stereotyping, and stigmatisation, particularly against refugees and migrant workers is incompatible with Article 2 of the UDHR, which provides for the right of non-discrimination. The provisions of the International Covenant on Civil and Political Rights 1996 (ICCPR) acknowledges each individual's inherent dignity and commits to promoting conditions within states that allow the enjoyment of civil and political rights. Lebanon's kafala system has been described as modern-day slavery by many, owing to its slave-like arrangement that binds the migrant to the employer. This makes it inconsistent with Article 8 of the ICCPR which stipulates abolition of slavery and forced labour. Likewise, the International Covenant on Economic, Social and Cultural Rights 1996 (ICESCR) governs the right to work, right to labour in decent circumstances, right to social security and social insurance, and right to a decent quality of living, all of which are tied to the welfare of foreign workers. Article 6 establishes right to labour, making it not only legal but also the sole method to make a livelihood, whereas Article 7 establishes the right to fair and beneficial working circumstances. The difficulty with the kafala system in the context of these articles is that they constrain the sponsored worker’s movement and employment choice on the kafeel’s legal permission and to labour under harsh, unfair, and abusive working circumstances. Other international human rights conventions that deal with migrants, notably migrant domestic workers who are women, are also routinely violated by Kafala. These are the Convention on the Elimination of All Forms of Discrimination Against Women (1979) and the Convention against Racial Discrimination (1965). Lebanon has signed and ratified all of these conventions. Kafala has also received several criticisms for violating various internationally recognised labour standards, which are systems and laws set by the ILO. Forced Labour Convention, 1930, Right to Organise and Collective Bargaining Convention, 1949, Equal Remuneration Convention, 1951, Abolition of Forced Labour Convention, 1957, Discrimination (Employment and Occupation) Convention, 1958, Minimum Age Convention, 1973 and Worst Forms of Child Labour Convention, 1999 are the names of a few of the many Labour Conventions that Lebonan has signed and ratified and thus. is obligated to fulfil. Lebanon’s Compounding Crises The Lebanese population as a whole, along with refugees and migrant workers, has suffered greatly as a result of the economic crisis. The impact has manifested in job loss, inability to meet basic requirements, and underpaid or drastic fall in the value of salaries owing to currency devaluation. The poverty of Lebanese people has also led to a reluctance to hire domestic servants. As a result, migrants have been unable to send money home to support their families. The economic crisis also exacerbated racial prejudice and harmed Lebanese society's perception of migrants working and receiving humanitarian relief. Moreover, because migrant domestic workers lack access to healthcare, the COVID-19 pandemic exacerbated their living conditions. Furthermore, due to the risk of disease transmission, migrants who work in many families are having difficulty obtaining jobs and supporting themselves. As a result, illegal migrant domestic workers have been evicted and forced to live on the streets in front of their embassies, requesting assistance in leaving Lebanon. This has become more prevalent since they are unable to afford a ticket to go back home or pay high costs imposed by Lebanese authorities when a migrant worker gets into an irregular position. Standard Unified Contract The Standard Unified Contract (SUC) took effect in September 2020, however it did not survive long. The Syndicate of the Owners of Recruitment Agencies in Lebanon (SORAL) filed an appeal before the Shura Council in October against the new SUC's modifications, arguing that they would be in conflict with current labour laws. SORAL's charges against the new contract were successful, thus the revisions were not implemented on the grounds that the new contract "may inflict tremendous harm to the labour recruiting business." As a result, SUC 2009 is still in use. Despite the fact that the new SUC did not provide for a substantial change in the system or procedures for enforcing the regulations, it was met with vehement hostility from the collectives who benefit from the Kafala system. Due to this, the Lebonan Court rejected the new SUC to replace the Kafala system. Conclusion With one crisis after another erupting in Lebanon, there is no doubt that the plight of domestic migrant workers has worsened. They are extremely concerned about the country's instability and limited nature of the kafala sponsorship system. NGOs have been working to eradicate kafala and in doing so interact with government agencies. However, with every step towards progress, such as SUC, being thwarted by powerful lawmakers and other interested parties, any beneficial change appear to be incredibly delayed, leaving domestic migrant labourers skeptical about Lebanon's future. The consequences of the previous year's unprecedented problems underline the necessity for swift action, beginning with revisions to the kafala sponsorship system. More improvement in Lebanon may be conceivable as a result of the region's modest but steady transition. Recognizing the international community's demands as well as progressive action in neighbouring states, Lebanon can do more to create a mutually beneficial system for impoverished foreign communities who are deprived of institutional care and are willing to treat them as hardworking individuals that they are. This article is authored by Harsh Mahaseth, a Lecturer at Jindal Global Law School, and a Senior Research Analyst at the Nehginpao Kipgen Center for Southeast Asian Studies and Gauri Goel, a Student of Law at Jindal Global Law School, O.P. Jindal Global University. Introduction The Prosecutors of the International Criminal Court (ICC) recently started an investigation regarding the alleged atrocities committed against the Rohingya refugee population, primarily regarding the deportation of around 600,000 - 1,000,000 refugees from Myanmar to Bangladesh. On the 14th of November, 2019, the judges of the ICC authorized the investigation, which was to be conducted regarding any crimes committed on or after the 1st of June, 2010, when Bangladesh joined the ICC. An additional question relate to jurisdiction arose seeing as a number of the committed acts of violence occurred on the Bangladesh border and Myanmar is not a part of the ICC as they have not ratified the Rome Statute. The investigation by the ICC Myanmar, on the 15th of November, 2019, rejected the investigation that was started against them by the ICC for alleged crimes against the Rohingya. They further stated that their own committees would investigate the matter if it would be needed. However, the National Unity Government of the Republic of the Union of Myanmar (NUG), has accepted the jurisdiction of the ICC. The declaration of the same was submitted under article 12(3) under the Rome statute. The submission of this declreation threatened, the impunity held by the military officials who have undertaken the crimes. This does not mean that they have become a state actor, merely that they have given jurisdiction to the ICC to investigate the crime. Hence, the success of the same will remain uncertain until Myanmar becomes a state actor under the Rome Statute. Moreover, this declaration will start a discourse in the international community over which is the legitimate government of Myanmar; whether it is the Myanmar Junta or the NUG, which is seen as the government of the people. Bringing the case to the International Court of Justice Gambia acting as a proxy for the Organisation of Islamic Cooperation (OIC) instituted a case in the International Court of Justice (ICJ) against Myanmar on the 11th of November, 2019, for violations against the Genocide Convention of the United Nations (UN) for crimes against the Rohingya people in the Rakhine State, which in the words of Myanmar Government were clearance operations. Myanmar is a party to the Genocide Convention which makes the question of jurisdiction simplified under Article IX of the same. Myanmar argued Gambia was not affected by the crimes, there wasn’t any dispute with Gambia, and reservation regarding Article VIII of the Convention for the lack of jurisdiction held by the ICJ. However, ICJ refuted most of the arguments and went forward with proceedings. ICJ ordered Myanmar in January 2020 to prevent the genocide from happening against the Rohingya. The Government was against the ruling proclaiming the information brought by the ICJ, not portraying the actual situation in the country. Their line of reasoning was that there was no genocide, but war crimes occurred, which were being investigated under their own criminal system. The former de facto leader of Myanmar argued it was an internal armed conflict initiated by the Rohingya military. The Junta currently is also breaking the provisions ordered by the ICJ against them for protection of the Rohingya with restricting their right of freedom. Loopholes to prosecution These crimes cannot be prosecuted in Myanmar for many reasons. First, that Myanmar did not have a domestic law against genocide to file crime done against the Rohingya. Hence, a new law on genocide has been made by the military after the ICJ requirements. However, the law has been made by the military for its benefit and can’t be seen by many stakeholders as a law for enforcing a judgement or proper investigation for the alleged crimes by the military. Additionally, the judiciary is seen as partial. The judiciary being influenced by the military, and impunity for officers for acts done while doing their duty is given in the 2008 Constitution creates problems for any fair trial to be created in the domestic area. The Government has created the Independent Commission of Enquiry (ICOE) to investigate these crimes, but it is argued to be insufficient by the UN Commissioner for Human Rights. Argentina’s Federal Court is also investigating the alleged crimes perpetrated by Myanmar against the Rohingya people under universal jurisdiction; which covers grave crimes that can be tried anywhere as they aren’t specific to any one country. The case was created after the request of BROUK, whose President, Tun Khin, gave testimony in the court on the 16th of December, 2021, highlighting the crimes of the military, his own experience and examples of grave crimes done against the Rohingya. When the NLD, which was backed by the military, became the Government in 2016, it posted ex-military officers on senior positions. The Chief Justice of Myanmar was not changed after the party came into power and kept the ex-general Htun Htun Oo in the position. He sent a memo to the members of the judiciary instructing them to not welcome any correspondence by the ICC or the Argentina’s Federal Court. As the judiciary is highly influenced by the military, the memo may have been ordered by top military officials in the Junta. The Independent International Fact-Finding Mission on Myanmar had released its findings in 2018 wherein they stated that the military of Myanmar exhibits great control over its subordinates which makes the officials at the top be liable for the acts by their subordinates because of the hierarchical nature of command. Moreover, the military has never been held accountable and promotes perpetrators because there is no responsibility. The current move can be seen as a way to maintain this impunity against their crimes, who are being investigated by the international courts with the senior general Min Aung Hlaing being accused in most reports and testimonies. Myanmar can take inspiration from the case of Nicaragua v. USA in the ICJ wherein the US disputed the jurisdiction of the court in the case even when it was pronounced against it. Moreover, as the ICC doesn’t have any means of enforcing their decision, it is unlikely that the military would comply with them until there is an issue of jurisdiction. The judgement can be enforced in the UNSC but as 2 veto holders, China and Russia, are allies of Myanmar military, this position would also be not possible. 1/16/2022 Position of Right to Fair Trial and Permissible State Derogation in The International LawRead NowThis article is authored by Shaivy Maheshwari, a Fourth Year Student of Law at Symbiosis Law School, Noida.
Introduction For understanding the position of fair trials in the international regime, it is pertinent to first make sense of its customary and conventional standards. The said right is considered to be one of the cardinal rights guaranteed under the rule of law[1]. Fair trial has also been a crucial fragment to guarantee human rights which were first affirmed by the UDHR[2] and then recognized by a diverse number of human rights documents such as the ACHR, ICCPR, and ECHR. These instruments carry certain minimum standards which provide procedural safeguards to guarantee a fair trial[3]. A popular view suggests that human rights treaties have the disposition of jus cogens[4] i.e any kind of suspension or limitation would be impermissible to such norms[5]. Going by this view, one can deduce that the right to fair trial assumes the character of at least a compelling legal norm. However, in practice, derogation from the right to some extent is found to be permissible given they are “proportionate, crucial and are subjected to international scrutiny”[6]. Need for addressing the issue of fair trials One of the most basic principles of rule of law is the maintenance of equality among the subjects. The right to a fair trial itself seeks to provide a level playing field to the victims as well as the accused[7]. If the core principles of a fair trial are not upheld, the rule of law is bound to lose its value. This is because the balance between the rights of both parties would not be maintained, ruling out the basic principle of equality which is key to the rule of law[8]. Further, as per the Vienna Declaration of 1993, “all human rights are universal” and the international community is obligated to treat “human rights globally in a fair and equal manner”. The complexity of the criminal procedural law in the international regime[9], possibility of lack of independence of the judiciary[10] , and the differences in the languages of the international texts guaranteeing fair trial rights may pose problems if the ascertainment of the placement of fair trial rights remains ambiguous. Further, the differences in substantive interpretations and state volitions are likely to affect uniformity in the practice of guaranteeing fair trial rights. This paper first ascertains the character and placement of fair trial rights in the international legal domain. It then determines whether the exercise of such rights is subject to some kind of permissible derogations and the extent to which such derogations have been recognized by the courts. Lastly, it tries to deduce if fair trial rights assume the character of jus cogens given their nature, position and judicial recognition in the international domain. Placement of Right to Fair Trial in International Law The substantive content predominantly reflects various normative rights to ensure a fair trial which are given due recognition in the international law[11]. For instance, to be treated as an “innocent until proven guilty” is a customary norm under the international law[12]. This is reflected by article 14(2) of the ICCPR. Article 14 in fact enumerates much of the substantive standards pertaining to the right which are accompanied with various other procedural guarantees through article 7 read with article 1 of the Convention against Torture[13]; and article 9, article 10, article 13, and article 15 of the ICCPR. The Rome Statute apart from providing several basic rights of a fair trial under part 6 provides for the “right to remain silent”[14], a notable addition that was absent in the earlier drafts. The ECHR through article 6 also protects certain minimum fair trial rights of a person. Additionally, some specific guarantees such as those provided under article 6 of the additional protocol II are found to be diffused under international humanitarian law. There are also much shreds of evidence to suggest that the right to a fair trial has attained a customary character[15]. Thus, from a fundamental principle of the rule of law to a tool to guarantee human rights, the right to fair trial can be said to have been scattered around in international law. At one place, fair trial rights have been properly specified both in substantive and procedural terms, and at the other, these seem to be upheld because of their normative and customary character. Permissible Derogation of the Right by a State Fair trial is conventionally believed to be a well-established principle in international law from which no derogation is permissible except in accordance with the mechanism set out under various articles[16]. The presence of these substantive provisions does not however indicate that there is an absence of any kind of digression. These provisions are also prone to different kinds of interpretations and hence may have distinct applications[17]. For instance, having been created by the means of a treaty, the rights which are guaranteed under the ICC are not always inviolable[18]. Derogation to a certain extent is permissible, provided the circumstances governing the derogation follow the standards which have been enshrined under the instrument. Also, under the ICCPR, article 14 is kept outside the purview of the rights which cannot be derogated as per article 4 of the treaty. In such a case, it is important to identify the extent to which such derogation can be made possible and to see if the actual trend demonstrates the assurance of some basic minimum guarantees to a fair trial nonetheless. The Vienna Convention too allows the treaties to be interpreted by placing a good faith which should cater to the general meaning that can be given to its terms and following the object and purpose of the Convention[19]. Yet, given the nature and somewhat fragmented substantive position, a palpable way to perceive the character and disposition of fair trial rights in international law can be to observe the interpretations given by the courts. Judicial Interpretations regarding permissible derogations In the case of ICCPR, ACHR, and ECHR, certain common standards have been enumerated to justify a ‘valid derogation’ from the right. For instance, in the event of a national emergency, a state is allowed to derogate from the principle in order to balance the rights of the population with the necessity of ensuring the safety of the state itself[20]. In Lawless v. Ireland[21], the court pondered if, by the means of detaining the petitioner for five months before his trial, his fair trial guarantees which have been provided under article 5(1)(c) and (3) of the ECHR were violated. This was because bringing him before an appropriate legal authority was not the purpose of his detention. Yet, the court used the ordinary meaning of the term ‘emergency’ to suggest that the government rationally presumed the state of affairs to be an imminent state of emergency[22]. In the Greek case[23], the court concluded that political instability coupled with communist activities does not qualify as being the state of a public emergency. It becomes pertinent to note that while derogation has been made permissible to a certain extent, the states still need to justify the facts and circumstances which made them interpret the situation as one qualifying a national emergency. The courts’ interpretation also suggests that it gives due regard to the government’s discernment of considering a particular situation as that of an emergency. Furthermore, in the case of Ireland v. United Kingdom[24], the court opined that additional guarantees have to be made available to assuage the excessiveness of the derogation if the normal guarantees to a fair trial have been taken away[25].In this manner, the court sought to provide only a limited leeway to the states while striving to balance the rights of the population at the same time. Similarly, derogation of the states must be proportional to a legitimate aim which is to be pursued by the means of the limitation upon the right[26]. Conventionally, the courts believe that governments are better equipped to determine the kind of measures that are pivotal to handling the emergency[27]. In the case of Lawless, the court propounded that given the circumstances created by the situation, administrative detention was justified for handling the emergency[28]. There have been a number of several similar instances in which the court has reviewed responses of the governments. This suggests that though a margin has been provided to the governments to act according to their discretion yet international scrutiny is done to evaluate states’ action based upon acceptable limits, and to see if such action was indeed taken in good faith. The International Criminal Tribunal for the Former Yugoslavia in the Tadic case[29] indicated to some extent that digression from the procedural guarantees may be allowed even if there is no specific derogation clause[30]. This suggests that although the right to fair trial assumes a lot of importance in both substantive and customary international law, its specificity in terms of its permissible derogation is lacking. The courts’ evaluation helps in the assessment of a particular situation as to whether it qualifies as a legitimate derogation from the fair trial rights. Yet, the absence of any precise standard to review[31] to see if there was indeed necessity, proportionality and good faith on the part of government makes it difficult to sufficiently conclude whether this right can be upheld at all times. Conclusion From the above analysis, it becomes clear that any kind of derogation from the right to fair trial cannot be done arbitrarily on the part of the states but has to be legitimized. Even though it cannot be said that such practice would help in upholding all the substantive or customary fair trial rights at all times yet it’s fairly universal character and the practice of court evaluations can help in maintaining state consciousness regarding the existence of the right. This is particularly true because fair trial rights also find their place under the UDHR. A plain reading of article 6 of the ICCPR clearly demonstrates the intention of the existing legal regime to beseech the international community against practice of death penalty and persuade it to gradually abolish capital punishments. However, there is absence of any such additional persuasion, apart from the existing legal provisions adopted in the ICCPR, to strongly advocate in favor of upholding fair trial rights in the international regime. It is pertinent to note that such absence is coupled with its non-appearance under article 4 of the ICCPR among the rights which cannot be derogated even in cases of a public emergency. Article 38(1)(d) of the ICJ statute treats the court’s discernment of a particular issue as a secondary source of law. The court interpretations discussed above are indicative of the positive trend to recognize this principle as a legal mandate wherein any kind of derogation is to be justified for its validity. Yet, due to its imprecise placement, differing interpretations, absence of clear standards of review, and the existence of discretionary power that is given to the states, a lot needs to be done before the right to fair trial assumes the character of jus cogens. As discussed in the introduction of the paper, the resulting non-observance or illegitimate derogations which can occur due to the reasons mentioned above can have persistent negative implications for the rule of law and human rights in the international platform. [1] UNITED NATIONS COUNTER-TERRORISM IMPLEMENTATION TASK FORCE, OHCHR, RIGHT TO FAIR TRIAL AND DUE PROCESS IN THE CONTEXT OF COUNTERING TERRORISM 7 (2014). [2] Louis B. Sohn, John A Sibley Lecture: The Shaping of International Law, 8 GA. J. INT’L & COMP. L.1, 18-22 (1978). [3] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 535 (1999). [4] Karen Parker, Jus Cogens: Compelling the Law of Human Rights 12 HASTINGS INT'L & COMP. L. REV. 411,417 (1989). [5] Joan Fitzpatrick, HUMAN RIGHTS IN CRISIS, THE INTERNATIONAL SYSTEM OF PROTECTING RIGHTS DURING STATES OF EMERGENCY 3841 (1994). [6] Rosalyn Higgins, Derogations Under Human Rights Treaties 48 BRIT. Y.B.I.L. 281,282-283 (1976-77). [7] The Rule of Law, FAIR TRIALS.ORG, https://www.fairtrials.org/rule-law [8] The Rule of Law, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, June 22, 2016, https://plato.stanford.edu/entries/rule-of-law/ [9] Nicolas A. J. Croquet, The International Criminal Court and the Treatment of Defence Rights: A Mirror of the European Court of Human Rights’ Jurisprudence? 11 HUM. RIGHTS LAW REV. 91, 93 (2011). [10] David Harris, The Right to a Fair Trial in Criminal Proceedings as a Human Right 16 INT COMP LAW Q 352, 355 (1967). [11] WW Burke White, Regionalization of International Criminal law Enforcement: A Preliminary Exploration 38 TEXAS INT’L LAW J. 729,760 (2003). [12] UN Human Rights Committee (HRC), CCPR General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, UN Doc CCPR/C/21/Rev.1/Add.6, (November 4, 1994). [13] CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, art. 1. [14] ROME STATUTE OF INTERNATIONAL CRIMINAL COURT, 1998 art. 67, cl.1. [15] Amal Clooney and Philippa Webb, THE RIGHT TO A FAIR TRIAL IN INTERNATIONAL LAW (2021 ). [16] Patrick Robinson, The Right to a Fair Trial in International Law, with Specific Reference to the Work of the ICTY 8 BERKELEY J. INT. LAW 1,5-7 (2010). [17] JK Cogan, International Criminal Courts and Fair Trials: Difficulties and Prospects 27 YALE J INT'L L. 111 (2002). [18] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 535 (1999). [19] VIENNA CONVENTION ON THE LAW OF TREATIES, 1969 art. 31 cl.1. [20] Joan F. Hartman, Derogations From Human Rights Treaties in Public Emergencies 22 HARV. IRR'L L.J.1, 11 (1981). [21] Lawless v. Ireland 1 ECHR 15 (1961). [22] Lawless v. Ireland 1 ECHR 21 (1961). [23] REPORT OF THE EUROPEAN COMMISSION AND THE EUROPEAN COURT OF HUMAN RIGHTS, COUNCIL OF EUROPE, THE GREEK CASE 165 (1969). [24] Ireland v. The United Kingdom 2 EHRR 25 (1977). [25] Stephanos Stavros, The Right to a Fair Trial in Emergency Situations 41 INT COMP LAW Q 343, 347 (1992). [26] Jaime Oraa, HUMAN RIGHTS IN STATES OF EMERGENCY IN INTERNATIONAL LAW 140-141 (1992). [27] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 590 (1999). [28] Lawless v. Ireland 1 ECHR 22 (1961). [29] Prosecutor v. Dusko Tadic ICL 93 ICTY (1999). [30] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 600 (1999). [31] Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation 31 NYU J INT'L L. & POL. 597 (1999). 1/6/2022 The Nigeria-Morocco BIT: A Reformative Approach Towards the New Generation of BITs?Read NowThis article is authored by Shruti Sarkar, a Third Year Student of Law at Jindal Global Law School.
Introduction Bilateral investment treaties (BITs) serve as an effective tool in the regulatory landscape of international investment law. It mainly encompasses the regime of bilateral and regional treaties with a focus on investment clauses that protect and promote foreign investment. Further, emphasis is also placed on compliance to the principles of customary international law that govern the BIT. With the ever-growing relevance of such treaties, we also witness an increased criticism of the BITs for their evident asymmetry, imprecision and broad provisions. While the due protection granted to investment forwards the goal of investment protection over host state regulation, the emerging trends indicate a strong inclination towards inclusion of human rights obligations in the investment treaties, thereby creating a balance between the protection of human rights and economic value of the investment. Within this setting, the Nigeria-Morocco BIT has emerged as a ground-breaking example that provides a response against the resistance offered to the BITs. The Nigeria-Morocco BIT distinguishes itself from similar BITs by ensuring protection and promotion of foreign direct investment by adopting a human rights approach. While traditional BITs impose several obligations on the host state, this BIT takes a step forward to impose obligations on the investors. By this attempt to place a multiplicity of obligations on the ‘investor’ to safeguard human rights and environmental concerns through environmental and social impact assessments, and by efficiently defending the host State’s regulatory rights in social and environmental matters, the BIT has taken a bold step in the right direction. Obligations of Investors – How heavy is the burden? At this juncture, it is pertinent to note that several clauses of the Southern African Development Community (SADC) Model BIT resemble the Nigeria-Morocco BIT, especially with regard to the obligations placed on investors. Firstly, the former, like the latter, imposes a duty on the investor to respect human rights by not acting in its contravention under Article 15(1). Secondly, both under Article 14(1) of the Nigeria-Morocco BIT and under Article 13(1) of the SADC Model BIT, even prior to their establishment, foreign investors must abide by the environmental assessment screening and evaluation processes that apply to their investments. Thirdly, Article 14(2) of the Nigeria-Morocco BIT as well as Article 13 (3) of the SADC Model BIT requires the investors to undertake social impact assessment. Both Article 14(3) of the Nigeria-Morocco BIT as well as Article 13(4) of the SADC Model BIT additionally mandate the investors to apply precautionary principle to these environmental assessments. It can therefore be derived that though the first two clauses of Article 14 of the Nigeria - Morocco BIT are regulatory in nature, the third clause embodies a positive obligation. Fourthly, with regards to domestic labour, public health and safety, or human rights, both States (Nigeria & Morocco) have agreed under Article 15 of the Nigeria-Morocco BIT to not undermine, diminish, relax, or waive their domestic labour laws or international labour and human rights instruments in order to stimulate foreign investment. Fifthly, Article 18 of the Nigeria-Morocco BIT also specifies that foreign investors have to maintain environmental management systems; comply to human rights in the host country; behave in conformity with core labour standards, and not conduct business in a way that eludes the host country’s international environmental, labour, and human rights obligations. These obligations coincide with the provisions mentioned under Article 15 of the SADC Model BIT. Furthermore under the Nigeria-Morocco BIT, Article 19 expects the investor to meet or exceed corporate governance standards which are nationally or internationally accepted and Article 24 demands compliance with all applicable laws along with engagement in “highly socially responsible practises.” The imposition of such obligations around the issue of human rights is a significant development because it sets a clear expectation as to the investor's behaviour. It is therefore critical that these instruments enter into force, as their inclusion will help to alleviate concerns about the unequal distribution of obligations between investor and state in traditional BITs. Settling the conflict between investor protection and public interest issues There has been a persisting debate over whether host countries should give preference to their international obligation of (1) protecting their foreign investors, or (2) pursuing public interest issues, like human rights and environmental concerns. This question has emerged in several disputes, and arbitral tribunals have often been faced with a dilemma on the same. This can be witnessed in the decision presented in Santa Elena v. Costa Rica, on one hand and Methanex Corp. v. United States on the other. In the former, the ICSID Tribunal was reluctant to assign special significance to the goal of environmental protection. The ruling was therefore chastised for turning a blind eye to the increasing international efforts at making environmental protection a common goal. In the latter, the tribunal ruled that the state imposed ban was non-discriminatory and for public purpose as it was based on scientific reports to protect the environment, and to prevent contamination of drinking water. It was therefore, not an expropriation and thus was not compensable. This reflects the inherent uncertainty associated with the decisions of tribunals. In this regard, the provisions of the Nigeria-Morocco BIT can be seen as an attempt to resolve the debate as it moves towards finding the right balance between protecting foreign investment and regulating the economy. Bridging the gap through regulatory discretion Commentators have argued that the host states’ regulatory powers to enforce measures protecting human rights, public health, and the environment, are often adversely affected by the conventional interpretation of the BITs, which discourages countries to pursue international investment arbitration. However, Article 23(1) of the Nigeria-Morocco BIT, empowers the States to introduce new policy measures by applying their regulatory powers in order to meet the national policy objectives, implying that the host State has the liberty to deviate from their primary obligations in cases where non-economic policy aims take precedence over investment protection. Further, Article 13 allows the host state to exercise discretion regarding regulatory compliance, investigative, and prosecutorial concerns when it comes to environmental regulation. Article 13(4) further lays down that a host State can undertake measures that it deems suitable for carrying out investment activities in a non-discriminatory manner that is sensitive to environmental and social concerns. The regulatory powers of the host state is a helpful tool that permits them to undertake actions to achieve non-investment goals while avoiding liability under the BIT. While this marks a deviation from standard BIT drafting norms, which are frequently seen as limiting the host State’s powers to regulate, of recent, international investment tribunals exhibit an inclination towards supporting such rights of host countries to apply regulatory powers to preserve the environment and human rights. In Chemtura v Canada, for example, the Tribunal concluded that Canada’s implementation of environmental measures was a permissible exercise and within its regulatory powers, notwithstanding the fact that the measure harmed the foreign investor’s profit. Similarly, in Philip Morris v Uruguay, the Tribunal gave significant deference to the sovereign state’s decisions to adopt public health measures in good faith. In line with these rulings, the Nigeria- Morocco BIT’s clear and unambiguous inclusion of regulatory discretion displays an attempt to address the conflict between an investor’s legitimate expectations of legal framework stability and the host state's right to determine its own legal and economic order. Subjected to reasonable restrictions, the obligations clearly serve as a defence in favour of the host state in case of disputes arising out of the exercise of regulatory power. A bit of BITterness amidst greater possibilities Despite its innovative stance, the Nigeria-Morocco BIT has been subjected to several criticisms for favouring the interest of the host state over that of the investor. The language of the clauses pertaining to the host state’s regulatory powers makes it difficult for the tribunals to evaluate if the regulatory measure’s impact on investor rights is proportional to the host state’s aims. Consequently, the host State alone would be able to determine whether something is an issue in the public interest, and this in turn could lead to regulatory abuse, lack of good faith and absence of due process. There are also concerns about the need to redefine ‘human rights’ before imposing human rights responsibility on the investors. Also, though crystallization of the host state’s regulatory power and introduction of the series of investor obligations create the illusion of a balance treaty, uncertainty lures about titling the scale too much in favour of the host state which will lead to undermining of the interests of the investor, as BITs with limited protection and enhanced obligation will not attract investors due to the fear of governmental intervention in their business activities. On one hand such BITs can produce regulatory chill on the part of the host State by favouring investment protection, and on the other, they can subdue the objective of investment protection by favouring the host State’s right to regulate, thereby reducing the protection offered to foreign investors. As a result, the drafting of the BITs should take place in a way that balances the host State’s regulatory powers to protect the environment and human rights without jeopardising foreign investors’ interests. Finding the appropriate balance has served as a source of enigma to the tribunals as well, as noticed from the lack of uniformity in their rulings. Furthermore, there may be doubts about whether the right to regulate is sufficient, as Article 13(4) lays down that the measures have to be consistent with the agreement. Such clauses can be viewed to obstruct a state’s ability to take appropriate measures in public interest due to the traditional role of the BITs where investment protection occupies the centre stage. Therefore, there is a greater possibility that commitments to safeguard foreign investors often trump host governments’ measures designed to preserve public interest concerns. However, it can be claimed that the case of the Nigeria-Morocco BIT might be different since its original purpose was to establish a balance between the economic interest of the investor and the public concerns of the host state in international investment law. In essence, eventhough the Nigeria-Morocco BIT has encountered several criticisms, it still continues to mark the commencement of a new generation of BITs which emphasise on environmental and human rights obligations of the investor, with an objective of balancing the investor’s obligations and investment protection. 10/10/2021 Eclipsing the Moonlight: The Tricky Predicament When ICJ Judges Act as ArbitratorsRead NowThis 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. Conclusion 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. 9/19/2021 The Amnesty Exception: The Oscillating Stance between Legality and Illegality in International JurisprudenceRead NowThis article is authored by Diya Rajesh Kumar Vaya, a Third Year Student of B.S.W. LL.B. at Gujarat National Law University, Gandhinagar.
Overview 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. Introduction 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. Conclusion 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[1] 1. Introduction 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.[2] 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.[3] 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.[4] 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.[5] The Paradox between International Law and Domestic Law – An analysis of the Judgement The “Vienna Convention on the Law of Treaties” (VCLT)[6] 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.[7] 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.[8] 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.[9] 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.” [10] 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”[11] 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.”[12] 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.[13] 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.”[14] 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.[15] 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”.[16] 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.[17] 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.[18] 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”[19] 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.[21] 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. [1]J.G. Starke, Monism and Dualism in the Theory of International law, 17 Brit.YB. Int'l. L. 66 (1936) at p. 81. [2]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. [3]V.K. AHUJA, PUBLIC INT'L L. 42 (2016). [4](2016) 7 SCC 761 [5]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) [6]Vienna Convention on the law of treaties, 23 May 1969. [7]Ibid. [8]Ibid. [9]Supra note 5. [10]Melissa A. Waters, The Judicial Trend toward Interpretive Incorporation of Human Rights Treaties, 107 Columbia Law Review , 628–705 (2007) [11]Roger P. Alford, Misusing International Sources to Interpret the Constitution, 98 Am. J. Int'l L. 57, 58-62 (2004). [12]Appeal (civil) 1532 of 1993 [13]1980 AIR 470 [14]AIR 2014 SC 1863 [15]AIR 1954 Cal 591 [16] AIR 1997 SC 3011 [17](2013) 6 SCC 620 [18]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) [19]Supra note 10. [20]Supra note 5. [21]Supra note 10. This article is authored by Vaishnavi Chaudhry, a Third Year student of Law at Rajiv Gandhi National University of Law, Punjab.
Overview 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. Conclusion 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:
Closing Remarks 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:
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