6/27/2023 ICC’S ARREST WARRANT FOR VLADIMIR PUTIN: WHAT IT MEANS FOR THE INTERNATIONAL COMMUNITY AND INDIARead NowKovida BhardwajFIRST YEAR STUDENT OF LAW, NATIONAL LAW UNIVERSITY, JODHPUR An arrest warrant by the International Criminal Court [“ICC”] against Russian President Vladimir Putin is ostensibly a very imperative news amidst the many shocking events that have taken place over the course of the past year. It is certainly true that serious war crimes were being committed, when all the layman could understand about the Russo-Ukraine war was that it was an unfortunate event that seemed never ending like many previous ones in global history, recognized as having completed a ‘one year anniversary’ on 24th February, 2023.
What constitutes a War Crime, and how is it dealt with by the International Community? War crimes are defined in Article 8 of the Rome Statute of the International Criminal Court, as “Great breaches of the Geneva Conventions of 12 August 1949.” essentially stressing on protection of persons or property protected under the provisions of the same. Articles 33 and 49 of the Fourth Geneva Conventions prohibit collective “punishment or deportation” of civilian population in times of war. Russian President Vladimir Putin and Presidential Commissioner for Children’s Rights Maria Lvova - Belova have both been issued an arrest warrant for committing the offences of Unlawful deportation of population (children) and that of Unlawful transfer of population (children) from occupied areas of Ukraine to Russia since February 24th, 2022. War crimes are usually dealt with by the United Nations and other organizations with global credibility: A definite amount of social cynicism. However, a practical implication of the same cannot be asserted to the same degree. The ICC has till date had fifty-one defendants indicted for committing war crimes, and seven of them have completed their sentences as well. However, none of them are powerful leaders like Mr. Putin, and certainly not sitting heads of state from one of the P5 countries in the UN. Some of the defendants who were tried also passed away before their trials could even be completed. Rest assured, like most International Law provisions, those to regulate International Humanitarian Law [“IHL”] also largely remain theoretically enforceable only. This has been the case since history, and perhaps that was the way it was intended, because International Law can merely have a suggestive nature, and cannot override national sovereignty. Legal action cannot be taken by Ukrainian courts either, because of the principle of Head-of-State Immunity, wherein, apart from prosecution in their own country, Heads of State may only be prosecuted in an International Court, which again comes with its limitations. From where does Litigation derive legitimacy in International Law and how effective is it in reality? Coming to the question of litigation in the international sphere, if one were to simply put it, there are two ways to approach with action against a country or a Head of State. In case of the former, the country may be tried by the International Court of Justice [“ICJ”] as here, Allegations of Genocide under the Convention on the Prevention and Punishment of the crime of Genocide (Ukraine v. Russian Federation) is the case brought in the ICJ on 26 March 2022 against the Russian invasion of Ukraine. The latter lies under the jurisdiction of the International Criminal Court [“ICC”], as in this case Mr. Putin and Ms. Maria have both been tried as individuals for their role in furthering gross violations of IHL. Mainly, it is the Peremptory Norms of General International Law which are effectively most enforceable, because International Law explicitly disallows any treaty or convention to function in contravention to these norms as per Article 53 of the Vienna Convention on the Law of Treaties. They are based on the ideals of Natural Justice, such as prohibition against genocide, human trafficking, etc. Most of all, it is perhaps the UN Charter that enjoys most legitimacy. Russia’s invasion of Ukraine was also quoted as a “Violation of its territorial integrity and of the Charter of the United Nations” by the UN Secretary General Antonio Guterres in his briefing to the UN Security Council on the Ukraine crisis in April 2022. This violation would essentially refer to that of Article 2(4) of the UN Charter which provides that “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” When it comes to the applicability of these efforts under International Law, it is not surprising that there exist robust ways to circumvent the law and find ways to twist matters and change narratives. This is indeed the present case, where the Russian Investigative Committee [“RIC”] has opened a criminal case against the Prosecutor of the International Criminal Court, Karim Ahmad Khan and several ICC judges, based on their allegedly ‘unlawful decision’ to seek Mr. Putin’s arrest. Mr. Khan will now be investigated on the grounds of “criminal prosecution of a person known to be innocent and preparation of attack on a representative of a foreign state enjoying international protection.” This statement from the RIC is not a surprise, because the plausibility of this approach by Russia was indicated by its constant numb reactions to any legal action taken by International Courts ever since the conflict began, the same is also depicted by the nonchalance in the statements made by the Russian government which went on to dismiss the warrant as ‘null and void’. It is instances like these which make ordinary citizens look at International Law redressal mechanisms with an eye of suspicion. Why have a legal recourse in the first place when we know that it will never be followed? This can be answered by the fact that after the developments that have taken place till now in totality, Mr. Putin can certainly continue to delay the process of law as far as possible, but he cannot mute the narratives and worldview surrounding his actions. It is also very plausible to raise the question of how it even matters if his image is tarnished. He still remains one of the most powerful people in the world with a huge section of brainwashed population still having his back. However, the essence of practical effectiveness per se of International Legal Action is not in its legality of laws that a state or individual is subject to. It is rather the impact of the creation of a new global image of the state or person. How does ICC’s arrest warrant for Mr. Putin actually impact Mr. Putin and Russia and how is it different from previous attempts of legal and political action by the International Community? Muscovites were interviewed by a media channel in Russia to document their response to the arrest warrant. Anton Gerashchenko, an advisor to Ukraine’s minister of internal affairs tweeted regarding the same as an explicit example of how brainwashed the Putin-favoring Russian public is. This is also reflected by the fact that former Russian President Dmitry Medvedev openly issued the following statement: “It’s quite possible to imagine a hypersonic missile being fired from the North Sea from a Russian ship at the Hague courthouse.. Everyone walks under God and rockets…look carefully to the sky..” This is rather a matter of concern for the ICC, which does not even have its own police force and relies on member states for security; the last time the Russian leadership made an aggressive claim, the same quite literally translated into a full blown war that still continues. This nonchalance can also be seen in the RIC terming the Arrest Warrant as a violation of Article 1(a) of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, using the principle of Head- of-State-immunity. For now, what is evident is that it is not just legal equivocation that will help Putin in his cause to evade his arrest, but rather use of brute force, which can further be defended by twisting International Law principles yet again: when Russia initially invaded Ukraine, it claimed to do so because Ukrainians of Russian ethnicity were allegedly subject to genocide, and Russian occupation was a mere noble effort to restore the people’s Right to Self Determination. The arrest warrant will also be evaded by Russia on the grounds that it is not party to the Rome Statute of the ICC. However, it is a known fact that 43 states referred the case to issue the warrant, which formally triggers the ICC’s jurisdiction, and in any case, Ukraine has accepted the ICC twice in 2014 and 2015. The court holds jurisdiction over crimes committed on anyone in the territory of Ukraine from November 2013 onwards regardless of the nationality of the alleged perpetrators. Another popular justification used by Russia is to allege American involvement when the US leadership advances the decisions of International Authorities such as the ICC in this case. However, even the US subtly acknowledged the fact that this was merely a ‘strong point’ made by the international community. Fact remains that there is hardly any possibility of there being a trial following this warrant, because in order to be arrested, Putin will have to travel to one of the 123 countries that are members of the ICC. Moreover, this will make it a trial in absentia under International Law. A defendant’s right to be present during trial is fundamental to Due Process and is encapsulated in the International Covenant on Civil and Political Rights [“ICCPR”] which stipulates that for anyone accused of a criminal charge, “He is entitled to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing”. The General Comment No. 13 of the UN Human Rights Committee [“UNHRC”] states that “When exceptionally for justified reasons trials in absentia are held, strict observance of rights of the defense is all the more necessary.” International Law also provides a recourse to the same, as can be seen in the case of Mbenge v. Zaire[i], it was indicated that if the defendant voluntarily refuses to claim his right which interferes with proper administration of justice in that respect, proceedings in absentia may be justified. However, in the present case, it seems unlikely that such a precedent will be followed. This may take the form of retaliation by way of brute force, as threatened by Putin and Russian Authorities. It is indeed a sad state of affairs to acquiesce to the fact that International legal boundations may mean nothing for Russian aggression at a legal level. However, at a political level, this certainly means a lot. Mr. Putin will now be accompanied by infamous figures like the former president of Yugoslavia Slobodan Milosevic, and former Sudanese dictator Omar al- Bashir for the rest of his life. One can barely argue for there to be more robust International boundations. This is because the existing legal provisions for the same happen to be sufficient when it comes to statutes and conventions. It is an accepted fact that International law remains to be enforceable only as long as sovereign states agree to recognize its rulings, which is the way it was intended during its drafting as well. After a year of developments one after the other, it is useful to address the question of how this development is different from previous instances of sanctions against Russia and other political boycotts. Sanctions may be categorized as targeted restrictive measures against individuals, economic sanctions and visa measures. The EU has since the annexation of Crimea in 2008, imposed sanctions on 1,473 individuals and 205 entities specifically in services, restrictions on oil trade, aviation and transport, financial restrictions- especially with the Society for Worldwide International Financial Telecom [“SWIFT”] coming into the picture, even media outlets responsible for spreading global Russian propaganda. This approach has been followed by several other powerful nations such as the United States, United Kingdom and Switzerland. What remains is tariffs on food- related trade. The US had also imposed sanctions on 208 members of the Russian parliament for enabling the referendums to annex four regions of Ukraine. Germany stopped plans for opening the Nord Stream 2 gas pipeline from Russia. However, Russia’s ability to fund the war has been helped by high oil and gas prices, leading to a rise in its crude oil revenues by 41 % through 2022, even though its access to military innovation remains crippled due to sanctions. What is the way forward in combating the Russo-Ukraine War and what is India’s role in the same? Perhaps the most problematic nuance of the impugned Russian aggression is the clear violation of Ukraine’s right to territorial sovereignty. What started with Moscow’s mere indication of a further effort to Russianize the regime in Donbass following the annexation of Crimea in 2018 has culminated into utter chaos with a Russian occupation of nearly 17% of Ukraine, Everything said and done, Russia remains to be a major aggressor, and even the UN’s Independent International Commission of Inquiry on Ukraine has documented evidences of Russian acts that appear to constitute war crimes, and several states via submitting documentation to the International Court of Justice have found Russia to be guilty of committing genocide in Ukraine. Another burning question arises with regard to India’s role ever since this conflict started. As far as the arrest warrant is concerned, India stands under no legally binding obligation to extradite Mr. Putin who is set to visit New Delhi for the upcoming G20 summit even though the ICC may request a non- party to assist the court under Article 87(5). This is because India is not party to the Rome Statute signed in 2002 even though it stipulates adherence to the same in a non- binding manner. In fact even when on 23 February 2023 the UNGA adopted a resolution calling for an end to the war, the resolution was favored by 141 members and opposed by 7, while 32 states abstained, of which India was one. This was not surprising, given that India has chosen the path of abstention ever since the conflict started. India didn’t participate in the race for sanctions, rather took to buying Russian oil at bargain prices, much to the chagrin of the West, coupled with Indian Prime Minister Narendra Modi’s description of India- Russia ties as ‘unbreakable’ in September 2022. Opposition leaders in India have also gone to describe India’s approach to the war as devoid of the slightest criticism, almost appearing to aid and abet the war. The main point of issue remains that much of India’s arsenal was and is Soviet-made. Moreover, updating the entire composition of Russian military equipment to it being an amalgamation of French, American and Israeli systems is a tedious task which comes with economic costs for India and can certainly not be a short run approach. India’s much strategically planned affinity to Russia also stems for its recognition of the need to counter Chinese aggression. As they say, India’s biggest foreign policy preoccupation is not Ukraine or Russia. It is China. Russia’s focus in any case is more towards Asia, since the West’s case for Russian boycott is evident ever since. One may criticize the Indian position on grounds of morality. However, India’s role as a peace- loving country does not limit itself to world peace. Take for example, Britain or USA. Their vote against Russia is not for Ukraine it is in fact, for Britain and USA itself. Foreign policy can never supersede domestic interests, as that itself is violative of the idea of peace and morality in many aspects. In my opinion, there exists no gap in India’s diplomatic scheme. Rather the USA itself has conveyed the fact that it understands why India has not openly condemned Russia’s invasion of Ukraine. It is also a plausible approach keeping in mind the fact that India never favored the war either. It’s voting tendencies in the UN have never been in favor of Mr. Putin per se. To put it in a nutshell, the realm of International Humanitarian Law can rarely provide global solutions to global problems. Rather, it is much similar to the idea of Law itself- Law is not justice, it is just a medium to reach it. Even though the International community may not manage to literally put Mr. Putin behind the bars, it will certainly have a deep impact on the course of East European politics which reverberates in some way or the other all across the world. What waits to be seen is whether Russia decides to end this war of attrition or not, and the further role of the de facto world government which includes the UN, ICC and other bodies in countering the same. The whole issue boils down to a quest for power, and the long lost Soviet dream to become the first among unequals. There may be no straight answer to this, but the gravity of questions raised will only keep increasing. [i] U.N. Human Rights Comm., Mbenge v. Zaire, U.N. Doc. CCPR/C/OP/2 (Mar. 25, 1983).
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6/12/2023 India - Australia ECTA : A Breakthrough for India’s International Economic ProwessRead NowThis article is authored by Xenia Dhar, a Third Year Student of B.A. LLB (Hons.) at RGNUL, Patiala.
Introduction After months, the deliberations leading to the India-Australia ECTA have finally come to a fruitful end. The Agreement entered into force on 29th December 2022. It removes trade barriers between the two economic giants by offering duty-free access to tariff lines. Under this deal, India gets duty-free access to 100% of Australia’s tariff lines. This, in short, means that Indian exports to Australia would not have any duty-fee attached to them. Hence, the Agreement opens up a brand new market for Indian exporters. In addition, it has provisions that simplify exportation for Indian manufacturers by allowing for transparency1 as well as simplification2 of custom procedures, making it more accessible to them. Currently, Indian manufacturing is dominated by labour-intensive sectors. The sectors that benefit the most from this new-found access to the Australian market are the labour intensive sectors that include, but are not limited to textiles, leather, footwear etc. This is because of India’s high population which makes it easier to find a workforce at relatively cheaper costs. ECTA gives the goods produced by these labour-intensive industries immediate duty free access to Australian markets (currently subject to 4% to 5% import duty), hence, providing them with an incentive to manufacture more. The Impact On Labour-Intensive Industries It is not an unknown fact that India has surpassed China as the most populated country in the world. The country’s population, according to Bloomberg’s report, stands at a whopping 1.417 billion. In a highly populated India, the manufacturing sector is the largest institutional employer. In the manufacturing sector, the labour intensive industries account for more than 50% of the employment. Hence, in an industry that already employs millions, the introduction of ECTA has the potential to have a two-fold impact. Firstly, the introduction of ECTA will put India’s labour intensive manufacturing industries on the global map. It is to be noted that, according to data from UN Comtrade, India’s exports in the case of textiles, footwear and leather remain significantly lower than that of China. The data states that in 2020, while the volume of China's exports in these industries was more than 300 billion, India was staggering behind at less than 100 billion. The problem is exacerbated by India’s under-utilisation of its labour force in the manufacturing sector. ECTA enables India’s slumping labour-intensive manufacturing industries to compete with other developing economies such as China and Vietnam. It gives India’s labour intensive manufacturing to move past the domestic market without negatively affecting profits. Secondly, the export boost facilitated by ECTA would also entail ramping up of production which is ultimately bound to lead to job creation. This will strengthen the government’s Make In India policy. The policy is aimed to increase the growth of the manufacturing sector in terms of share in employment as well as national income. Challenges to market Access for Indian labour-intensive manufacturing Industries: Undoubtedly, ECTA would enable India to use its comparative advantage (on a global level, the term refers to a country’s ability to carry out a particular economic activity more efficiently than another country) over Australia with regard to labour-intensive manufacturing. However, in 2021, India’s imports to Australia only accounted for 2.4% of the total imports in comparison to China’s 27%. India’s share of imports was also lower than that of Thailand & Malaysia, both of which, up until now, have remained primarily labour-intensive economies. It must also be noted that Australia has signed the China - Australia Free Trade Agreement (ChAFTA) in 2017 which offers a similar duty-free access to Australia’s markets to China. Similarly, Thailand and Malaysia also have FTAs with Australia. Other countries that have FTAs with Australia include Peru, Indonesia, Chile etc. Thus, it becomes clear that India will also have to compete with other developing countries to capture the maximum market-share of imports into Australia. However, signing of ECTA provides India with a level playing-field. After India’s withdrawal from the Regional Comprehensive Economic Partnership (RCEP) in 2019, ECTA also provides India with an excellent opportunity to resume bilateral trade relations with Australia. Fear of an unfavourable balance of trade against participating countries was a major reason for India’s withdrawal from the RCEP. The provisional bilateral safety measures3 provided under the ECTA also ensure that India’s domestic industries are protected against an import surge or an unfavourable balance of trade against Australia. Hence, the benefits derived by exporting goods manufactured by the labour-intensive manufacturing industries would not be diluted by excessive imports that would lead to a trade deficit. The Way Forward For India The signing of ECTA is a significant win for India. As mentioned earlier, after its withdrawal from the RCEP, this agreement is India’s first major trade agreement in the Indo-Pacific region. ECTA along with CEPA (Comprehensive Economic Partnership Agreement) signed between India & UAE are two of the latest new-age bilateral trade agreements signed by India with two major trade partners. Currently, talks are also on going for an India - EU FTA. With India’s strengthening global economic position, these trade agreements are better negotiated to suit India’s needs. Furthermore, they lay down the blue-print for future Free-Trade Agreements that the country might sign with its more developed counterparts. Signing of stand-alone FTAs in the Indo-pacific also provides a lucrative alternative to the RCEP where the provisions may be customised according to special needs. Furthermore, India also has the opportunity to re-negotiate older FTAs in the same vein to make them mutually beneficial. Additionally, the zero-tariff access that ECTA and similar FTAs provide to the labour intensive manufacturing industries are likely to impact exports positively. The economic growth of many Asian countries, in the past, has been driven by the export of goods manufactured in the labour-intensive sector. One needs to look no further than our own neighbour Bangladesh. The reason for Bangladesh’s booming economy is the export of textiles. Today, the country is the second largest exporter of the same. In a similar manner, China’s current economic prosperity is a result of its long drawn history of labour-intensive exports. Other major examples of labour intensive manufacturing exports leading to economic prosperity include the development stories of South Korea & Japan. Given India’s high population and younger demographic it is high time for India to develop its labour intensive industries and get access to developed markets. Looking at previous examples, the same is bound to give a sure-shot boost to India’s economic prowess while simultaneously providing jobs to India’s young population Endnotes 1. Article 5.4, India-Australia Economic Cooperation & Trade Agreement 2. Article 5.5, India-Australia Economic Cooperation & Trade Agreement 3. Article 3.8, India-Australia Economic Cooperation & Trade Agreement This article is authored by Masoom Sanyal and Mahika Suri, 2nd-Year Students of B.A LL.B (Hons) at Gujarat National Law University.
“I regard freedom of expression as the primary right without which one cannot have a proper functioning democracy.” – Lord Hailsham Background In a landmark ruling, the Lahore High Court has struck down the colonial sedition law incorporated in Section 124A of the Pakistan Penal Code, 1860 (“PPC”). The provision in question reads as “whoever by words or visible representation brings or attempts to bring ‘into hatred or contempt or excites or attempts to excite disaffection’ against the government shall be punished with a term which may extend to life imprisonment.” Section 124A, popularly known as the Sedition Law, has been used by successive governments to silence opposition and suppress dissent. Notably, similar provisions are found in the Penal Codes of India and Bangladesh as well. A single-judge bench of the Lahore High Court presided over by Justice Shahid Karim was hearing the challenge against Section 124A of PPC. The High Court has finally declared the law as inconsistent with the Constitution of the Islamic Republic of Pakistan in view of Article 8 of the Constitution, which declares that “laws inconsistent with or in derogation of fundamental rights” shall be void. The Court held that Section 124A was inconsistent with Article 19 of the Constitution of Pakistan which guarantees all citizens the fundamental right to ‘freedom of speech and expression’ and ‘freedom of the press’. The Court further held that the provision of Sedition was also violative of Article 9 (Security of Person), Article 14 (Inviolability of Dignity of Man), Article 15 (Freedom of Movement), Article 16 (Freedom of Assembly), Article 17 (Freedom of Association), and Article 19A (Right to Information). Although Article 19 provides for the freedom of speech and expression, it also reasonably restricts the citizenry’s right to freedom of speech and expression in the interest of the following six grounds: (a) the Glory of Islam; (b) Integrity, Security or Defence of Pakistan or any of its parts; (c) friendly relations with Foreign States; (d) Public Order, Decency or Morality; (e) Contempt of Court, and (f) Commission or Incitement to an Offence. Still, the Lahore High Court was not inclined to hold that the offence of Sedition as provided in Section 124A falls within any of the reasonable restrictions provided in Article 19 of the Constitution. Implications of the judgement in Pakistan This judgement is being lauded as an important win for free speech and civil liberties in Pakistan. The Human Rights Commission of Pakistan (HRCP) also had previously expressed concerns over the increasing use of the provision of Section 124A of PPC by successive governments to suppress dissent and cases being filed against opposition leaders and journalists under this law. The Commission had urged that the Sedition Law must be abolished, since it constituted “a constraint on the legitimate exercise of constitutionally guaranteed freedom of speech and expression.” However, the Ministry of Law as well as the Ministry of Human Rights defended the sedition law in the Court. They argued that Section 124A of PPC was not inconsistent with Article 19 of the Constitution and fell well within the ambit of reasonable restrictions stipulated in the Article. The Government of Pakistan will almost certainly appeal this decision and there exists a possibility that this judgment may be overruled by the Supreme Court of Pakistan. Nevertheless, the current verdict by Lahore High Court is applicable across Pakistan since the PPC applies across the country. Indian position A similar challenge was instituted against Section 124A of the Indian Penal Code (IPC) in the Supreme Court of India. Originally drafted by the colonial government of the day, the provisions with respect to sedition in the IPC and PPC are identical. Previously, in the judgment of Kedar Nath v. Union of India (1962), the Supreme Court of India had heard a challenge to the validity of the Sedition Law. In a decision rendered by a Constitutional bench of five judges, the Hon’ble Court had held that the restriction imposed by Section 124A of the IPC falls within the ambit of “public order” as a ground of reasonable restriction under Article 19(2) of the Constitution of India. However, the Court limited the applicability of the Section to acts and speeches which have a “tendency or intention to create public disorder” or if such act or speech constitutes an “incitement to violence”. Although the Court attempted to greatly reduce the scope for misuse of the Section, the use of the sedition law to suppress dissent has only increased over time. Given the scope of misuse of this Section and its alleged inconsistency with the right to freedom of speech, in February 2021, a petition was filed in the Supreme Court of India against the constitutionality of the Sedition Law. The Supreme Court clubbed nine other previously pending petitions with the one filed in February 2021 and decided to hear them collectively under the title S G Vombatkere v. Union of India. In May last year, while hearing the S G Vombatkere batch of petitions, the Supreme Court ordered that all proceedings under Section 124A must be kept in abeyance for time being and that all those incarcerated currently could get bail from Sessions Courts. The Court is yet to decide whether or not there is a need to revisit the judgement in Kedar Nath Singh v. Union of India. However, it is submitted that the time is ripe for the Indian Supreme Court to declare Section 124A of the IPC unconstitutional and constitutive of an illegitimate limitation on the exercise of the fundamental right to freedom of speech and expression by the citizenry. Historically, the offence of Sedition was used to curb dissent against the government in colonial India. Many of India’s freedom fighters were charged under this section for voicing their opposition to the British Government, including leaders like Gandhi and Bal Gangadhar Tilak. Interestingly, the founding father of Pakistan, Mohammad Ali Jinnah, appeared for and defended Tilak when the latter was charged with sedition. In light of this legacy of Sedition, both India and Pakistan must get rid of this colonial invention of a law whose very inception was the result of the then government’s willingness to curb dissent. Analysis In our independent, post-constitutional nations that have adopted democracy as a cornerstone, there is no need for this law. It also cannot be justified as a reasonable restriction upon the exercise of free speech under Article 19(2) of the Indian Constitution. It is helpful to refer to the Constituent Assembly Debates of the Indian Constituent Assembly at this juncture. Our Constitution-makers, after a lengthy debate, resolved to exclude “sedition” as a ground for reasonable restriction on freedom of speech and expression. In Ram Nandan v. State of UP, the Court quoted Pt. Jawaharlal Nehru who called Section 124A “highly objectionable and obnoxious” and said that “the sooner we get rid of it, the better.” The Law Commission of India has also recommended in its Consultation Paper on Sedition, published in 2018, that there is a need for the Sedition Law to undergo change and asked, “The United Kingdom abolished Sedition ten years back citing that the country did not want to be quoted as an example of using such draconian laws. Given the fact that the Section itself was introduced by the British to use as a tool to oppress the Indians, how far it is justified to retain S 124A of IPC?” The NCRB started compiling data on Sedition in 2014. The data suggests that 475 cases have been filed under S 124A between 2014 and 2021 and the pendency has remained unusually high. The conviction rate in these matters has also remained low – the lowest being 3.3%, as recorded in 2019. Those in favour of this Section argue that it is important to balance the interest of the State with the protection and enjoyment of the fundamental rights of the citizens. However, as argued previously, sedition as an offence was introduced with the very intention to curb dissent. Moreover, there is adequate protection available to the State under Chapter VI of the IPC and PPC, respectively, by virtue of other sections in that chapter, whose constitutional validity is not in question. The offence of Sedition is a colonial legacy being increasingly misused as a political tool to curb the civil liberties of citizens and stifle free speech. It is not in line with the idea of a modern democratic nation committed to constitutionalism, and therefore it must be read down at the earliest. The judgment of the Lahore High Court is a major victory for Free Speech and Civil Liberties in Pakistan; it is time that the Indian Supreme Court also follows suit and holds Section 124A of the IPC unconstitutional. 4/24/2023 Navigating the Pandemic Landscape: The Significance of a Modern Pandemic Treaty in International Law – Part IIRead NowThis article is authored by Tarazi Mohammed Sheikh, a Penultimate-year Law Student at BRAC University.
Relevance and significance of adopting an international instrument on pandemic (b) Protection of human rights A pandemic has manifold links with human rights, as the experts of the United Nations assert, that the negotiations for an international instrument on pandemic prevention, preparedness, and response must be conducted in line with human rights. The COVID-19 pandemic, in the past 3 and more years, has made clear that a pandemic, directly and indirectly, affects several economic, social, and political rights of people, among which the right to life, the right to appropriate healthcare, the right to freedom of expression, assembly and movement are common worldwide. Several instruments in international law recognize the rights of every human being for their tranquil exercise of economic, social, and cultural functions. However, unprecedented circumstances like the COVID-19 pandemic evidently give rise to questions as to whether rights are being violated in the process of addressing the crises. The International Covenant on Economic, Social and Cultural Rights (1966) (“ICESCR”) provides in its preamble the objective to “...[recognize] the inherent dignity and equal and inalienable rights of members of the human family..]” as the foundation of freedom, justice and peace in the world. In Article 1(1), the ICESCR provides the right to self-determine the economic, social and cultural status. The ICESCR prohibits any interpretation of its provisions to be utilised for barring the freedom and recognition of anyone’s rights at any stage in Article 5. Article 6 provides the right to freely determine one’s occupation and safeguards relating to the occupation. Article 7 ensures rights and equality pertaining to wages and remuneration of the workers. The right to social security and insurance has been guaranteed under Article 9 of the ICESCR. Furthermore, Article 12 of the ICESCR conforms to the enjoyment of the highest attainable standard of physical and mental health of a person which includes the prevention, treatment and control of epidemic, endemic and similar cases, as such of the COVID-19 pandemic. The right to basic and uninterrupted education and enjoyment of a social life filled with cultural engagements are secured in Articles 13 and 15 respectively. Further, Article 16 obligates the States parties to adopt necessary steps at any stage to protect the rights under the ICESCR. In that vein, the COVID-19 pandemic has resulted in the violation of the aforementioned rights at different stages. Many people around the world have been deprived of their right to freely determine their occupation and their rightful demand of wages according to their work as the employment rate dropped significantly due to the severe collapse of the economic system in most parts of the world. Ultimately, the economic status also threatened the social security of many people. The right to the highest attainable standard of physical and mental health has been under threat, not to mention, in every part of the world as people sustained damages relating to not only medical health but also economic, social and familial issues. The basic education of many children and the cultural programs have been interrupted as countries imposed months-long lockdowns to prevent the spreading of the virus. Likewise, the COVID-19 pandemic threatened the civil and political rights of the general people at various levels throughout the years. The International Covenant on Civil and Political Rights, 1966 (“ICCPR”) in its preamble specifies its objective to accelerate the protection of human rights in line with the Universal Declaration of Human Rights (1948) to recognize “...the ideal of free human beings enjoying civil and political freedom and freedom from fear…]” Similar to the ICESCR, it provides the right to freely determine one’s political status in Article 1(1). Then Article 2 provides the equal treatment of all people regardless of race, religion and language or social origin. An important provision of the ICCPR, Article 4, provides provisions relating to public emergencies. It asserts that the circumstances of public emergency shall be addressed and necessary steps shall be taken, however, without derogating the rights and without emanating discrimination “solely on the ground of race, colour, sex, language, religion or social origin” Article 6 provides the legal protection of the right to life followed by the right to liberty and security in Article 9. Further, Article 12 provides the right to lawful movement within and out the territory, which is further subject to reasonable restrictions. Such reasonable restrictions may be extraordinary situations like public emergencies or a pandemic. Article 21 of the ICCPR provides the right to peaceful assembly. However, this right is also subject to reasonable restrictions, including public health emergencies and public order as per the texts. Article 24 of the ICCPR provides rights relating to non-discrimination based on origin, which is further reiterated in Article 27. Albeit, the world has witnessed an upsurge of racial discrimination against a specific group of people, particularly Asians, during the COVID-19 pandemic in the assumption that the virus has emanated from China, hence the liability belongs to the Chinese and Asian people. As a result, several violent encounters have been reported in many countries with specific racial groups. Therefore, the instrument on pandemic also concerns provisions relating to the prevention of racial discrimination. Limitations and future implications While yet in the process of drafting, the finalised provisions of the convention or agreement remain unsure to date. While a hugely responsive consent of 194 countries initiated the drafting process, streaks are high that not all countries may agree with the final drafting and ratify it. The Chief of WHO in a recent statement indicated that the end of the COVID-19 pandemic is not far in sight. Hence, the pandemic can only be used as a model to draft the instrument as most of the factors behind a scientifically triggered disaster to remain unknown and subject to a time-consuming process of experiments. It is estimated that because the push for the adoption of a Pandemic Treaty arose due to the enormous challenge posed by the pandemic, a good number of countries expressed conformity with the initiative. However, the long-run success of any new adoption greatly depends on the compatibility of the instrument. In international legal practice and literature, there is no standard formula to determine the effectiveness of a multilateral treaty. As a result, the term ‘treaty effectiveness’ does not exist in the international legal regime. However, there may be some factors and indicators considered conducive to the success and specification of issues that essentially detract from positive outcomes can be deduced based on the past reviews and experiences of a large number of treaties and instruments in force. Despite the attempts to extract a fully-fledged framework to prevent, prepare and be responsive to pandemics in the future, the prospective international instrument demonstrates several limitations. Such adoption would not only pave the way for the expression of true political motive to work in line with global health and protection measures as well as provide an all-inclusive and sustainable framework to foster global cooperation against threats posed by pandemics, endemics and beyond. Another limitation of the instrument may be concerning unequal enforceability. Furthermore, the signing parties have sought a progress report on four key inputs, which include a requirement for the member states and stakeholders to provide a written copy of the drafts of the treaty, the 2022 WHO Regional Committees to conduct regional consultations on the provisions and their effectiveness, informal and focused discussions on specific topics with experts, specialist and concerned officials; and finally, to conduct public hearings for relevant stakeholders to express their comments and observations of the proposed drafts. The scope for States to conform to the treaty after its adoption is estimated to be governed by the decisions of the Member States and the intergovernmental negotiating body. It is further expected that the new accord shall remain open for all States to ratify and contribute in line with the example of the FCTC. What significantly sets the pandemic aside from other man-made disasters, is that it is unpredictable and sensitive to address. While there are several data available on the estimation of the harm caused by the pandemic in 3 years, the actual damage is uncountable by data. Further, the pandemic also imposes risks of genetic mutilation and permanent medical damage to affected living beings which may be descended to the future generation without alert. Additionally, while the pandemic caused severe damage to the world economy, however, specific countries of low income and lower GDP faced the most threats. Hence, it may be a challenge for the economically shallow States to enforce the instruments at their best. As a result, it is pertinent to adopt the most sustainable instrument to avoid maximum damage in the future caused by a pandemic, endemic or similar disaster. 4/24/2023 Navigating the Pandemic Landscape: The Significance of a Modern Pandemic Treaty in International Law – Part IRead NowThis article is authored by Tarazi Mohammed Sheikh, a Penultimate-year Law Student at BRAC University.
Background The COVID-19 pandemic has been one of the significant challenges to the global community for the past 3 years and further. It is considered the biggest and most destructive period since the 1940s. Moreover, it is also considered a one-of-a-kind threat which makes it different and more challenging to deal with. The reason behind its uniqueness lies in its origin; a scientific cause, a virus. The novel coronavirus medically termed SARS-CoV2, first emerged publicly in late 2019 in Wuhan city of the People’s Republic of China. Being a fast-growing virus and a highly contagious one, it took less than 3 months to become a public health concern that seemingly infects patients with a severe form of acute respiratory syndrome. As such, public panic occurred correspondingly as the scientists and medical experts failed to provide any immediate medical solutions, making the virus seemingly a terminal disease for many. The World Health Organisation (“the WHO”), a specialised agency of the United Nations for international public health, then declared the condition a Public Health Emergency of International Concern on the 30th of January 2020. However, with the increasing rate of death and the urgency of immediate cooperation from the States, the WHO announced the outbreak as a “Pandemic” on the 11th of March, 2020. Ever since, different protocols and measures have been taken by different States to minimise the destruction of the pandemic at different levels. As of January 2023, more than 663 million cases have been confirmed cumulatively in the global aspect by the WHO, with a cumulative death count of more than 6 million patients. The WHO, besides being assiduous in keeping a record of the numbers, does express concern for the uncounted and unrecorded number of confirmed cases and deaths worldwide. Hence, at the global level, COVID-19 has raised a common threat and concern for the States against such an envisaged global outbreak in the future. In the vein of the harm caused and estimated to be caused by the end of the pandemic, a panel negotiation for an international instrument on pandemic preparedness was held at the 75th session of the World Health Assembly (“the Assembly”) of the WHO in May of 2022 at Geneva, Switzerland. The provisional agenda of the Assembly included deliberation between the world leaders and experts in public health on an urge that States negotiate on adopting a new international instrument on pandemic preparedness and recovery. With the patronage of the Director-General of the WHO, Dr Tedros Adhanom Ghebreyesus, the Assembly consented to initiate a historic global process of drafting and negotiating an international instrument like conservation or an agreement to protect the world from such crises similar to the COVID-19 pandemic in the future. The instrument, according to the Assembly, would be drafted following the provisions of the Constitution of the WHO and would aim to remain vital in its mission of strengthening pandemic prevention, preparedness and response worldwide as well as strengthening the global health structure to protect and promote the right to health of people. As of January 2023, the instrument is in the process of drafting by an intergovernmental negotiating body and is due to be delivered by a progress report at the 76th World Health Assembly later in 2023 with a tentative date of adoption by 2024. Relevance and significance of adopting an international instrument on pandemic An unforeseen and rapid pandemic like COVID-19 is, undoubtedly, a global challenge, and not any single State or group of States can be held responsible. Similarly, not one single State or group of States can address the threat single-handedly in the future. Thus, the principal aim of an international instrument on pandemic prevention, preparedness, and response is to build solidarity in the essence of the doctrines of fairness, inclusivity, and lucidity. Moreover, an international legal instrument like a Convention or Agreement is legally binding on the States Parties which ratify it under international law. Hence, the instrument to be adopted in line with the provisions of the Constitution of WHO shall have a binding characteristic on the States which would ratify it upon adoption. It is universally agreed that a pandemic like COVID-19 can be prevented if the entire cycle of precaution, detection, and response can be reformed and the loopholes addressed. Not only this, COVID-19 exposed some of the crucial images of many States of their unpreparedness and incompetence to address such a devastating crisis. It further indicated negligence and a corrupt approach to many States’ healthcare systems at the domestic level. Hence, the prospective instrument for pandemic preparedness is not only a legal and medical discourse, but also a political one. Further, what intrigues the adoption of a Pandemic Treaty at this stage is that there have been several independent review committees and panels in different sectors of the United Nations and other institutions functioning for global causes which at different times indicated the necessity for a more effective international legal regime to prevent, prepare for and respond to pandemics and endemics, especially, considering the functions and scopes of the single existing instrument, the International Health Regulations ( “IHR”). Here, it is pertinent to mention that the IHR are a key international instrument focussing on international health-related measures and safety. The Regulations were primarily established for the purpose of preventing, protecting against and controlling to provide public health response to an expanded way of spreading infectious disease in such a way that is in accordance with and restricted to risks of the public health and to avoid irrelevant interferences and interventions with the international traffic and trade. Another significant aspect of the IHR is Article 57, which provides the authority to the State Parties to conclude any international accord or special treaty for the purpose of implementing the Regulations in a cost-effective manner. There are, however, some other Conventions, Agreements and Rules available under the mandates of the WHO such as the WHO Framework Convention on Tobacco Control (“FCTC”) covers the major (albeit the only existing instrument of its category) global health concerns under the WHO. Not only these, the Treaty also seeks to address social and economic responses in times of pandemics. (a) Three stages of addressing a pandemic; Prevention, Preparedness & Response The instrument comes with manifold purposes. For instance, it aims to prepare the world for a future pandemic, both on a global and regional level as well as increase global capacities and resilience. Further, it aims to bring the States together politically and build a higher, sustained and long-lasting political commitment among them. The instrument also aims to define the terms relating to a pandemic, i.e., the legal definition of pandemic, endemic, resilience, disaster management, lockdown, shutdown, terms of safety protocols relating to infectious disease, etc. Hence, it will provide an enhanced and comprehensive understanding of the circumstance and concerns relating thereto. Another core aim of the instrument would be to enhance support for the people in terms of both the public and private sectors. Finally, the instrument shall allocate a greater scope for fostering the integration of policy areas pertaining to health matters at both domestic and international levels. Besides framing the do’s and don’ts of a State during the pandemic, the instrument also aims to support and focus on preventive measures by increasing resilience before a pandemic may occur. A further means to ensure an appropriate response to any future incident is to ensure universal and equitable access to medical equipment, such as medicines, vaccines, protection measures, surgical tools, etc. The instrument, in addition, aims to create a stronger international framework to be followed by all State Parties which would pertain to the global health measures and standards set by the WHO. Finally, the instrument targets not only aid human beings, but also animals and the planet as a whole. In most States, the national healthcare system suffered extreme pressure during the pandemic despite high or low economic conditions. Such an unprecedented and wide health emergency resulted in causing a shock to the regular healthcare supplies, services and the workforce required on the front line to combat the dangers. In this regard, the Independent Oversight and Advisory Committee for the WHO Health Emergencies Programme Report provides, “ensuring delivery of an essential package of health services with sustainable funding is a key priority.” Hence, the frameworks of each state for disaster risk management and resilience would play a significant role. And in that regard, the key function is in the hands of the administrative and legislative branches of the States to implement the existing legislations and enactments enforceable within the domestic sphere. Such a framework from each State must be mandated to ensure the availability of access to vaccines, diagnostics, medicines and other health and protection equipment essential for combatting an unprecedented and infectious disease with a rapid rate of contagiousness. Therefore, the critical challenges faced by the health regulatory systems at domestic levels would be further developed after the adoption of the international accord which would allow the components of the WHO health systems framework and health services, hospital capacity building, health workforce, issues relating to capacity and protection, governance and financing and other relevant sectors to grow and work in line with the preparedness and prevention against deadly pandemics. Finally, by implementing the aforementioned goals, the international instrument of pandemic prevention, preparedness, and response will ensure cooperation among the States and build better surveillance, alert, and response to future pandemics. Note: The relevance and significance of adopting an international instrument on pandemic in terms of the protection it offers to human rights, and the limitations of such an instrument as well as its future implications will be discussed in Part II of the blog. 4/17/2023 ICC’S Warrants Against Putin: Addressing Gaps in International Law with respect to ICC’S JurisdictionRead NowThis article is authored by Divyanshi Shukla and Vidushi Jaiswal pursuing their second year B.A. LL.B. (Hons.) at National Law Institute University, Bhopal.
Introduction “We cannot allow children to be treated as if they are the spoils of war.” - Statement by Prosecutor Karim A.A. Khan KC On 17th March 2023, Pre-Trial Chamber II of the International Criminal Court (ICC or Court) issued warrants of arrest for two individuals in the context of the armed conflict in Ukraine: Russian President, Mr. Vladimir Vladimirovich Putin and Russian Children’s Rights Commissioner, Ms. Maria Alekseyevna Lvova-Belova. This means that the authority of the Court has been brought into question again, with this historic decision. However, there are several gaps in the jurisprudence that makes it difficult for the ICC to implement its orders against Putin, as indicated by Russian spokesperson Maria Zakharova, wherein she said, “the decisions of the ICC have no meaning for our country, including from a legal point of view.” This article aims to shed light on the apparent gaps in the implementation of the Court’s authority over Non-State Parties. It analyses the situation of issuance of warrants in the case of Russia with respect to the settled jurisprudence in international law and further discusses the solutions that can be put forth by the international community, specifically India. It also discusses the interaction between the United Nations Security Council (UNSC) and ICC where the UNSC strengthens the authority of the Court in holding even the non-State Parties accountable. Settled Jurisprudence The settled jurisprudence in international law does not vest unfettered powers and rights in the ICC to hold the actors responsible for their wrongful conduct. The whole idea of the legal justice system that is embedded in the Court depends on the extent and level of cooperation offered to it by governments so that it can function successfully and carry out its role. States that are not parties to the ICC are also included in this cooperation. Cooperation under the Rome Statute and UNSC The ICC, which derives its mandate from the Rome Statute, is a permanent international court to prosecute the criminals for the most serious crimes whether committed in their territories or by their people in other regions. Since the ICC does not have its own police or institutional regime to hold the perpetrators accountable for their atrocious acts, duty to cooperate by the international community becomes paramount for strengthening the mandate of the Court. This duty to cooperate differs for State Parties and non-Party states. This is because State Parties are bound to cooperate which does not leave room for them to evade the Court’s jurisdiction. A broad clause relating to state cooperation and judicial assistance is found in Article 86 of the Statute. This clause mandates the State Parties to “co-operate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.’’ The duty to cooperate by the State Parties also finds a mention in Treaty law and Article 35 of the Vienna Convention on the Law of Treaties (VCLT) states, “an obligation arises for a third State from a provision of a Treaty if the parties to the Treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.” Further, according to Article 34 of the VCLT, a Treaty cannot impose obligations or rights on a third state without that third Party’s assent. Thus, as aforesaid, while State Parties are under an obligation to present cooperation requests and cooperate with the directions of the ICC, Non-State Parties may only be invited to cooperate. Russia has always tried to escape from the clutches of the ICC by using its Non-Party status as an excuse. Recently, the ICC issued warrants against Mr. Vladimir Putin on violation of Article 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute for the war crimes of unlawful deportation of people (children) and unlawful transfer of population (children) from the occupied areas of Ukraine to the Russian Federation. Similar charges were levelled against Ms. Maria Belova. They were also charged with individual criminal responsibility under Article 25(3)(a) of the Statute. Nevertheless, Russia has refused to surrender to its grave actions by not accepting the Court’s jurisdiction. However, when the Court’s authority is analysed conjointly with the authority of the UNSC, the jurisdiction of the ICC seems to bring even the Non-State Parties under its ambit. When the UNSC recommends a problem to the ICC, interaction between the two organisations begins. The UNSC establishes the basis of this interaction through referrals made to the Court. These referrals help the Court exercise its jurisdiction even on the Non-State Parties. Cooperation under international humanitarian law- Geneva Convention Both the 1949 Geneva Conventions and the Rome Statute have a strong relationship with regard to war crimes. Furthermore, nearly all the states of the world have ratified or acceded to the 1949 Geneva Conventions, which have indisputably become a part of customary international law. In any case, the duty to cooperate should be interpreted as requiring Non-Party States to try not obstruct the ICC’s efforts to punish or stop grave violations of the Geneva Conventions at the very least. If we look at the observations in the Nicaragua case, the Court therein noted, “there is an obligation on the United States Government, in terms of Article 1 of the Geneva Conventions, to ‘respect’ the Conventions and even ‘to ensure respect’ for them ‘in all circumstances.’” ‘Ensuring respect’ means that all states, whether or not they are involved in a conflict, must do everything within their power to ensure that everyone, especially the conflict’s participants abide by the rules. In light of the aforesaid discussion, a perusal of Article 50 of the Geneva Convention makes it clear that it mandates states to take all necessary actions to make ‘child identification’ and ‘parentage registration’ easier. In any case, states are not to alter their current situation or enlist them in formations or organisations that are beneath it. In the present scenario, Russia has hardly taken any such measures. On the contrary, it has unlawfully deported and transferred around 16000 children. However, the current system does not seem to penalise it for the same. Analysing Gaps in the Implementation The issuance of warrants by the ICC does not mean that Vladimir Putin or Maria Belova will be out of power, extradited or even indicted anytime soon. Since Russia is a Non-State Party, even if it fails to co-operate with the ICC, the ICC Assembly of States Parties does not have the authority or capacity to censure it or ask Russia to assume state responsibility. Even under the general principles of international law, there is no direct or binding obligation of Russia to follow the ICC warrants. Due to this reason, the authority of the Court came to be questioned since those who are accused of serious crimes, such as Putin, can evade trial and punishment owing to them being Non-Party to the Treaty. Personal Immunity of Incumbent Heads of State Russia can decline to enforce the ICC warrant by enforcing the immunity for Heads of State. Doctrine of Head of State immunity was developed in the case of Democratic Republic of the Congo v Belgium. This case suggests that “heads of the state have ratione personae immunity for public acts done whilst in office.” There is abundant state practice to show that this rule is well-established in the international law.[i] Moreover, Article 17 of the Rome Statute is based on the principle of complementarity, according to which, the jurisdiction of the ICC is not superior to that of the states. Hence, Russia can rely upon precedents to escape prosecution of Putin and Maria Belova. Furthermore, there have also been instances where states have not complied with the warrants issued by the ICC. In the case of Prosecutor v Omar Hassan Ahmad al-Bashir, South Africa did not comply with the warrant for the arrest of Omar al-Bashir, the incumbent President of Sudan, for various war crimes and crimes against humanity. Similarly, in the case of Prosecutor v Gaddafi, Libya did not authorise the warrant to arrest Muammar Gaddafi, the then incumbent President of Libya. Both South Africa and Libya cited the reason that they are Non-States Parties to the Rome Statute and their head of state enjoys immunity from prosecution. These prosecutions against them were indeed made effective, however, only through UNSC Resolutions 1593 and 1970 respectively. So, the question that arises is, can a UNSC resolution bar Russia as well? UNSC Resolutions: How Effective are they for Russia? UNSC derives its authority from Article 25 of the UN Charter which states that all the decisions made by the UNSC are binding on all the member states of the UN. The implementation of prosecutions against Putin through UNSC Resolution is not likely because Russia is a permanent member of the UNSC and a negative vote from any one of the five permanent members of the Council stops action on any measure put before it. Therefore, it is most likely that if the UNSC takes action against Putin, Russia will simply veto against it and stop it. Therefore, due to its permanent membership in the UNSC, it is difficult to hold Russia accountable. Conclusion and Way Forward The Court’s President, Piotr Hofmanski noted, “the ICC is doing its part of work as a court of law. The judges issued arrest warrants. The execution depends on international co-operation.” The issuance of warrant by the ICC is significant as it can act as a ‘wake-up call’ to others committing abuses or covering them up. The foregoing analysis shows the ambiguity in implementation of warrants passed by the ICC due to non-compliance of Russia. Russia’s powerful position in the UNSC makes these provisions of ICC a toothless tiger with regard to dealing with the serious violations committed by Putin, and makes this just another empty chase between the ICC and Putin. Therefore, the gaps in implementation have to be filled in order to prevent such horrendous crimes to take place in future. While a State may not have acceded to the ICC, it should still be subject to an obligation to co-operate with it in certain cases like crimes against humanity and other humanitarian crimes. Furthermore, the power to veto should be taken away from the five permanent members of the UNSC if the UNSC resolutions concern that State. Not only these, but the situation is also an interesting test for countries like India and China, which want to see themselves as major international players. Talking about India, which is looking forward to the 17th G20 Heads of State and Government Summit this year where Russia is also an invitee, India can either allow Putin to attend the summit or cancel his invitation after the current turn of events. India should consider cancelling his invitation as it is already walking a tightrope by taking the “strategically independent” stand in the Russia- Ukraine war. India has even abstained from voting in UNGA resolution to end the war and because of that, the West is already upset. Hosting G20 is a positive step towards advancing India’s national interest in global politics and India should not risk this by allowing Putin to attend the G20 Summit. Lastly, the instant issue also presents an interesting test for the global players, as cooperation from global key players plays an important role. The degree of political, industrial, and civil society awareness of the issues; the level of stakeholder engagement, and the level of regulatory competence will all play a role in this issue. Only time can tell as to how the present case would unfold. [i] Muammar al-Ghaddafi (2004) 125 ILR 456 (French Cour de Cassation); Fidel Castro [Spain, Audiencia Nacional] No 1999/2723, 4 March 1999; Tachiona v Mugabe and others 169 F Supp 2d 259 (United States District Court, 2001); ‘The Belgian Court of Cassation v. the International Court of Justice: the Sharon and others Case’ (2003) 1 Journal of International Criminal Justice 437; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3, 24 [58] (‘Arrest Warrant case’). This article is authored by Vrinda Gaur a 2nd Year Student of Law at Dr. Ram Manohar Lohiya National Law University, Lucknow.
Introduction The first time national food safety and animal and plant health measures were put forth on the negotiation table was during the deliberation of the GATT Agreement 1947. With the establishment of the World Trade Organisation on 1st January 1995, a new Agreement on Sanitary and Phytosanitary (SPS) Measures as a part of the GATT Agreement came into force, superseding the old principles of human, animal and plant health protection measures as enumerated in the GATT Agreement. The Sanitary and Phytosanitary (“SPS”) Agreement is a part of the World Trade Organization (WTO) agreements that aims to protect human, animal, and plant life, or health from risks arising from the introduction of pests, diseases, or contaminants in trade. The factors behind the demand for the evolution of an SPS Agreement were poor dispute settlement mechanism of the Standard Code and the expansion of trade tariffs and quotas to agricultural goods. While the agreement seeks to promote free trade while protecting human, animal, and plant health, there are concerns that it may disproportionately impact the interests of the Least Developed Countries (“LDCs”). Furthermore, although parties reached a consensus during the Uruguay Round that the agreement would cater for a mechanism that would open international markets for developing nations, it was also a foreseen risk that it could be used as a protectionist device by the developed countries. To add to the dilemma, only a few developing nations were a part of the negotiation table for the agreement making it more a product of the developed world. Although both the developed and developing nations acknowledge the requirement of such an agreement for equitable facilitation of international trade, a paucity of technical, financial and human resources further added to the list of issues for the convenient implementation of the Agreement. This piece aims to critically analyse the shortcomings of the SPS instrument from the perspective of developing or LDCs. Major Concerns of the Developing Nations Implementing the SPS Agreement centres around two crucial propositions: non-discrimination and scientific justification. All provisions of the agreement ranging from harmonisation (Article 3), equivalence (Article 4), risk assessment ( Article 5) etc., function based on the above two propositions. As a result of noncompliance with the principles of non-discrimination, and enforcement of a measure not backed by sufficient scientific evidence, the SPS Agreement has turned into a protectionist tool in the hands of the developed nations to promote their interests, as well as protect their local producers and products. Furthermore, a major concern of the developing nations is the harmonisation issue. Harmonisation requires a member nation to base its sanitary measures on international standards and guidelines. The agreement further recommends the standards and policies set by three major organisations: (i) Codex Alimentarius Commission, (ii) the International Office of Epizootics, and the International and Regional Organisations operating within the framework of the (iii) International Plant Protection Convention to be looked up to, while looking for a suitable sanitary measure. As easy as it may seem, a direct correlation exists between the likelihood of a country being part of the organisations mentioned above and their per capita incomes. Owing to their low level of per capita income, developing counties are unable to voice their appropriate level of protection to be considered by these organisations for formulating standards, rules and guidelines. Hence, the rules, standards and guidelines of such organisations usually follow the paradigm enumerated by the developed nations due to lack of representation of the developing nations and the LDCs. A second essential provision of the agreement pertains to equivalence (Article 4). “Equivalence” refers to the principle that countries can use different measures to achieve the same level of human, animal, or plant life or health protection without creating unnecessary trade barriers. It means that if a country has different regulations or standards for a particular product, they provide an equivalent level of protection to the rules or standards of another country. This essentially entails that the product be considered equal and not subject to additional trade barriers. The issue here is that the developing nations call for stricter implementation of this provision. The developed nations, on the other hand, want the measure to be similar to ‘their’ standards in terms of outcome and implementation. The essence of the agreement requires an analogous measure, whereas the developed nations demand a facsimile. The reason behind such a demand on the part of the developed nation is the need for more trust in the food safety system of the developing countries. However, expecting developing nations to implement an exact measure would go against the interests of such nations, considering their economic and human resources limitations. Next in line is the issue of transparency. Transparency under the SPS Agreement refers to the principle that countries must provide clear and timely information about their SPS measures to other WTO members to ensure that they are based on science, and do not create unnecessary trade barriers. The main concern here is that SPS measures vary from country to country; are often very intricate to understand, and subject to frequent changes, thus leaving exporters in a state of ambiguity about the sanitary legislation in their export markets. Members must also formulate enquiry and notification points to provide smooth access to information about their market conditions to nations who wish to trade with it. Though formulating such points has been easy for the developed countries, developing nations need to catch up due to the lack of efficient tools to gather such information promptly. Furthermore, while developed nations have played a prompt role in notifying such market changes through legislation, developing countries have often complained that their inputs and recommendations are often neglected and ignored. Developing countries experience many problems with transparency related to the lack of financial and human resources that are necessary to follow, understand and comment upon developments in the regulatory frameworks of their trading partners. Setting up a mechanism that would help collect and disseminate information to the country that appeals to the forum for such information was a collective suggestion of the developing nations. However, affirmative actions still await. Concerning the special and differential treatment issue covered under Article 10 of the Agreement, developing nations are dissatisfied with the non-acknowledgement of this provision by the developed countries. Developing countries have requested a more extended period for commenting upon new measures introduced by the developed nations in addition to an increase in compliance with such measures. All this stems from the lack of economic and human resources, as seen previously. Developing nations have requested a period of 12 months between the publication of a measure and its actual enforcement. They have further asked for the implementation in specific time frames in particular areas and issues. However, more voices should be given to their legitimate concern. Another concern of the developing nations is the dispute settlement mechanism of the SPS agreement. The dispute settlement mechanism is quite lackadaisical and provides a long way out. Resource-wise, mainly financially, it is quite draining. The settlement process takes around two to three years before a favourable decision of the panel or the appellate body will bring about any regulatory changes. One such instance is the delay in the decision of the Appellatte Body in the US-COOL case between USA and Canada. Initially the issue came up in 2008, however the decision was delivered no earlier than 2011. In such a long period of ambiguity, exporters usually look for alternative channels for trade, as awaiting the ruling of such bodies would cause severe economic losses. Moreover, the cost of proceeding with the complaint is quite hefty. Hence, developing nations often partner with a developed nation to divide the cost. However, the result of such a partnership is often harassment of the developing country by the developed county. Conclusion The limitations in own country’s administrative arrangements for SPS requirements, lack of knowledge of SPS requirements among government officials; incompatibility of SPS requirements with domestic production or marketing methods; poor access to financial resources; insufficient time permitted for compliance, and all of the aforementioned difficulties can be summed up as challenges faced by the developing world. One possible solution that could assist in dealing with most of the above issues is to provide representation to the developing and the LDCs in organisations such as the Codex Alimentarius Commission and the International Office of Epizootics that are responsible for formulating health safety guidelines, rules and standards of international trade. Such representation would ensure maintenance of the requisite standards and appropriate level of protection for the developing countries, as well as ensure harmonising them with those of the developed nations, making the compliance procedure less onerous than before. Moreover, greater cooperation among the developing countries in SPS issues is also fundamental. Co-operation could be in the forms of joint national efforts at conducting risk assessments for SPS measures; everyday R&D activities in food production; co-operative efforts in technical assistance; training in administrative and production processes; exchange of information, and new initiatives on SPS matters, both of WTO origin and private standard. Creation of a financial pool that would alleviate the economic burden of the developing nations, while instituting complaints and disputes before the dispute settlement body is also an excellent measure, to begin with. The focus should be on addressing short-term issues. The redressal of these core issues will make way for settling the unaddressed long-term concerns. 4/3/2023 The 2047 Navy Atmanirbharta Goal: Analysing India's Maritime Power and Control of the Sea for Freedom of NavigationRead NowThis article is authored by Tejaswini Kaushal, a 2nd-year B.A. LL.B. (Hons.) student at Dr. Ram Manohar Lohiya National Law University, Lucknow, holding a keen interest in cyber law, technology law, IP law and corporate laws.
Introduction India is a maritime nation with a coastline of more than 7,500 km, and an extensive Exclusive Economic Zone (EEZ) of about 2.2 million square kilometers. As a result, India has a strong interest in promoting freedom of navigation and the rule of law in the oceans. The Navy is, therefore, essential to India’s defense, providing a robust and reliable presence on the seas. At Aero India 2023, Chief of the Naval Staff, Admiral R Hari Kumar, announced that the Indian Navy will become a fully self-reliant force by 2047, committed to fostering Atmanirbharta (“self-reliance”) in the defense arena. Furthermore, with a focus on the Indian Ocean region, the Navy’s partnership with the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (RCOC) in Seychelles allows for extended surveillance further south. In light of the proposed increase in the Indian Navy’s capabilities, India’s commitment to self-reliance in defense and becoming a significant maritime power must be consistent with international law and the rule of law. With this backdrop, it becomes essential to examine India’s maritime policies and outlook on sovereignty in light of principles of International Law. Concepts of International Maritime Law Governing Indian Maritime Strategy The concepts of Mare Clausum and Mare Liberum have historically governed maritime law. Mare Clausum refers to the idea that a country could claim sovereignty over a particular sea and restrict access, while Mare Liberum advocates for free navigation in the oceans. Today, freedom of navigation is a crucial principle in international maritime law, which asserts the right of all states to navigate and use the oceans without restriction. India has emphasized the importance of freedom of navigation in the Indo-Pacific region as part of its strategic interests and commitment to a rules-based order in the oceans. India's Outlook on Sovereignty and Maritime Law India is a nation deeply rooted in the notion of sovereignty, with a strong historical basis for its adherence to maritime law. This is exemplified in its stance of nonalignment; its constant adherence and support of being bound by the dictates of the United Nations Convention on the Law of the Sea (“UNCLOS“); its consistent emphasis on the importance of the freedom of navigation in the Indo-Pacific region, and its insistence on the right to self-determination. India’s commitment to sovereignty and maritime law is further strengthened by its commitment to protecting its territorial waters and exclusive economic zones and its active participation in regional and international forums to ensure the resolution of disputes through peaceful means. The Indian government has adopted a strong stance in favour of the freedom of navigation and has consistently rejected the notion of ‘innocent passage’ (“Right of Passage over Indian Territory (Portugal v. India)“) as well as any restrictions on the right to use international waters. India’s stance on sovereignty and maritime law is thus shaped by its long-standing commitment to freedom, autonomy, and the rule of law. The Challenges Posed to India's Stance on Maritime Power and Control India’s approach to maritime power and control of the sea raises some legal questions and concerns. Firstly, India’s approach to maritime power is characterized by a focus on naval modernization and acquisition of advanced maritime capabilities. India has been investing heavily in its naval forces, including the construction of aircraft carriers, submarines, and other advanced warships. While a strong navy is an essential element of maritime power, it is crucial to ensure that such capabilities are developed and deployed in a manner that is consistent with international law. Under UNCLOS, coastal states have certain rights and obligations concerning their maritime zones, including the right to regulate navigation and other activities in their territorial waters and the right to exploit the resources in their EEZs. However, these rights are subject to certain limitations, including the freedom of navigation and overflight, which is an essential element of the international legal order. In this context, India needs to ensure that its maritime capabilities are not used in a manner that restricts freedom of navigation, or violates the rights of other states. Secondly, India’s emphasis on control of the sea raises some legal questions, particularly in the context of the South China Sea dispute. India has been a vocal supporter of freedom of navigation and has conducted several naval exercises and patrols in the region to assert its presence and support for the rule of law. However, India’s approach to the South China Sea dispute has been somewhat ambiguous. While India has expressed support for the principle of freedom of navigation, it has not taken a clear position on the territorial disputes in the South China Sea. India has emphasized the importance of resolving disputes through peaceful means and in accordance with international law. Still, it has stopped short of taking a clear position on the merits of the various claims. This has led to the criticism that India’s approach is inconsistent with its stated commitment to the rule of law in the oceans. Thirdly, India’s approach to maritime power and control of the sea raises some concerns about the potential for escalation and conflict. The acquisition of advanced maritime capabilities by India and other regional powers has led to an arms race and increased tensions in the region. There is a risk that such tensions could escalate into a full-blown conflict, with severe consequences for regional security and stability. To address these concerns, it is important for India to ensure that its approach to maritime power and control of the sea is consistent with international law and the principles of rule of law. India should continue to invest in its naval capabilities but should do so in a manner that respects the rights of other states and promotes freedom of navigation. India should also take a more active role in resolving the South China Sea dispute and promoting regional security and stability. Analysis and Conclusion India’s maritime laws and policies have not changed from their postcolonial past, even though diplomatic rhetoric and strategic outreach have shifted. This reflects a trend away from mare liberum, or freedom of the seas that has dominated for the past two centuries, and toward a more restrictive mare clausum approach. This shift is not exclusive to India, as many coastal nations are taking a more restrictive stance on freedom of navigation in their own waters. The trend has been to move away from the United States’ perspective on freedom of navigation. This is owing to the rise of other countries and the diversification of power in the international system, which is making the traditional American perspective less relevant. Even if India is increasingly aligned with the United States, the trend is towards more restrictive maritime regimes that place greater emphasis on coastal state control over navigation. In a nutshell, India’s commitment to freedom of navigation and rule of law in the oceans is laudable. Still, its approach to maritime power and control of the sea raises some legal questions and concerns. India needs to ensure that its maritime capabilities are developed and deployed in a manner consistent with international law and the principles of rule of law. As stated previously, India should also take a more active role in promoting regional security and stability and in resolving the South China Sea dispute. 3/10/2023 Persistence of Deadlocks at COP27: Viability of Employment of Traditional Knowledge and Indigenous Practices as Means to Food Security?Read NowThis is an editorial piece authored by Vaishnavi Salimath, third year student of law, and Tejas Sateesha Hinder, fifth year student of law, National Law Institute University, Bhopal.
Background According to a recent report by the Intergovernmental Panel on Climate Change (IPCC), agricultural productivity has decreased by 21% as a result of global warming, along with other factors like unfavourable weather patterns and deteriorating soil quality. This means that climate change continues to pose a threat to food security. This happens at a time when there is a greater demand due to an expanding global population, which includes an increase in the number of individuals who are hungry. The COVID-19 effect, increasing food prices globally, and supply-side pressure from the continuing crisis in Ukraine have only made matters worse. Although one of the main agenda items at the 27th Conference of Parties (hereinafter “COP27”) summit in Sharm el-Sheikh, Egypt, was food security, the roundtable discussion on November 7 only received a muted response and no significant announcements were made, which could have helped resolve one of the most important problems we are currently facing. The discourse however indicated at employing traditional knowledge and indigenous practices from indigenous groups in other countries can help mitigate the unfavourable situation. This brings to light the question of possible expropriation of cultural and religious rights of the indigenous people, whose practice would be employed by the international community in the process of ensuring food security. This article looks at the possible claims that could arise in lieu of such claims surrounding human rights, and attempts to deconstruct such claims, legally justifying the greater good. The conundrum of cultural and religious rights Incorrectness of a prospective human rights based claim States from whom traditional knowledge and indigenous practices are borrowed cannot claim as an injured State,[1] as human rights obligations are only owed to individuals.[2] Further, the ICCPR and ICESCR do not create obligations erga omnes partes between the parties.[3] This is limited to treaties that are intended to protect a collective interest.[4] Comparatively, the broad human rights treaties, as mentioned above, focus on States’ relationship with individuals.[5] Futher, religious and cultural rights are not erga omnes obligations owed to the whole international community.[6] That status only attaches to a narrow category of obligations.[7] There is insufficient State practice or opinio juris indicating that religious or cultural rights should be included in this category.[8] Article 2(1) of the ICCPR limits States’ obligations to individuals in their territory or subject to their jurisdiction.[9] While the ICESCR contains no equivalent provision, its scope is similarly limited.[10] ‘Jurisdiction’ is primarily territorial,[11] and only applies extraterritorially in exceptional circumstances.[12] Under the ICCPR, this has been when a State’s agent violates an individual’s rights when acting abroad,[13] or when the State has effective control over the other State’s territory.[14] These are situations of purposeful action outside the State’s territory — a limit consistent with the exterritorial application of the Convention on Racial Discrimination,[15] and the interpretation of specific rights by the Economic and Social Committee.[16] There is no basis to extend extraterritorial application to the current, incidental transboundary situations. Absence of speculative breach of cultural and religious rights The ICESCR recognises the right to cultural life.[17] While States have an obligation to facilitate and fulfil this right,[18] States using traditional knowledge is only obligated to take “appropriate” steps.[19] The ICCPR protects the freedom to hold a religion and the freedom to manifest a religion.[20] Religious rituals are part of the manifestation of religion.[21] However, this right is a “freedom”. It defends individuals from direct interference,[22] but does not impose further positive obligations on the State.[23] This interpretation is supported by the fact that other ICCPR rights, in contrast, expressly require active measures by the State.[24] Appropriateness allows consideration of other protected rights.[25] Food security is a humanitarian necessity, and providing such security is part of a State’s non-derogable minimum obligations.[26] Halt in food production will regress the right to health, which there is a strong presumption against.[27] Religious and cultural rights are validly limited Freedom to manifest one’s religion and the right to cultural life can be subject to limitations.[28] There are three requirements for justified limitations.[29] First, that limitations must be prescribed by law that is clear and accessible.[30] Second, limitations must be for a legitimate purpose, as prescribed by the relevant treaty. Food Security protects health globally. This meets the purpose of ‘public health’ under the ICCPR,[31] and promoting the “general welfare” under the ICESCR.[32] The final requirement is that the limitation is necessary and proportionate.[33] The largescale risk to the health of the public means that any possible hunting or cultivation laws meet this criterion.[34] Impending treaty obligations The Convention on Biodiversity and benefit sharing Article 8(j) deals with traditional knowledge. It uses qualified language; States are only required to act “subject to their national legislation” and only to “encourage” benefit sharing.[35] Accordingly, the provision does not impose substantive benefit sharing obligations for the use of traditional knowledge.[36] No other articles of the CBD impose applicable requirements, except under Art. 15(7) of the CBD only deals with benefit sharing for the use of the genetic resource. Customary international law requires “virtually uniform” state practice and opinio juris, belief their conduct is rendered obligatory.[37] Developments in benefit sharing norms in the indigenous rights field have been exclusively limited to misappropriated land or physical resources.[38] While benefit sharing for traditional knowledge has occurred, there is insufficient opinio juris. Benefit sharing requirements are established to be in conformity with the CBD regime, not because of a belief that a rule existed beyond this.[39] Examples outside the treaty’s scope are for non-legal reasons, such as media pressure,[40] or as an internal policy decision.[41] Moreover, States that act inconsistently and do not enforce benefit sharing are not considered in breach of international law.[42] Obligations of due diligence and equitable use Equitable use requires a balance between the State’s sovereign right, the interests of other States in the shared resource, and environmental protection.[43] Countries using traditional knowledge have a customary obligation to ensure that any activity within its jurisdiction did not cause significant transboundary harm to the country’s territory from whose tribal or primitive groups knowledge is being used.[44] A State has a sovereign right to exploit its resources pursuant to its own environmental policies.[45] However, States are required to act with due diligence in preventing significant transboundary harm resulting from activities in its territory.[46] This obligation is one of conduct, not result; hence countries using traditional knowledge are not required to prevent the harm in fact.[47] Sources: [1] International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts 53 UN GAOR Supp (No 10) at 43, A/56/83 (2001), art 42(a); James Crawford, Alain Pellet and Simon Olleson (eds) The Law of International Responsibility (Oxford University Press, Oxford, 2010), 942. [2] HRC General Comment 31, [9]; HRC General Comment 24, [17]; Charles T Kotuby and Luke A Sobota General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes (Oxford University Press, New York, 2017) p. 19, 106. [3] International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts 53 UN GAOR Supp (No 10) at 43, A/56/83 (2001), ASR, art 48(1)(a); Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 422, [68]; Prosecutor v Blaškić (Judgment) ICTY Appeals Chamber IT-95-14, 29 October 1997 [26]. [4] Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 422, [69]; Third report on State responsibility, by Mr. James Crawford, Special Rapporteur A/CN.4/507 (2000), [92]. [5] Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 422. [6] Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) [1970] ICJ Rep 3, [33]; International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts 53 UN GAOR Supp (No 10) at 43, A/56/83 (2001), ASR, art. 48(1)(b). [7] Christian J Tams Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, Cambridge, 2005), 117. This includes aggression, slavery, racial discrimination (Barcelona Traction, [34]), genocide (Armed Activities (Congo v. Rwanda), [71]), and self-determination (East Timor, [29]). [8] North Sea Continental Shelf Cases (Federal Republic Of Germany v Denmark; Federal Republic of Germany v Netherlands) [1969] ICJ Rep 3, [74]. [9] Human Rights Council Analytical study on the relationship between human rights and the environment A/HRC/19/34 (2011), [69]; HRC General Comment 31, [3]. [10] Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel E/C.12/1/Add.90 (2003), [31]. [11] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 136, [109]; Al-Skeini and Others v The United Kingdom (55621/07) Grand Chamber, ECHR 7 July 2011 [131]. [12] Advisory Opinion OC-23/17 (2017) IACrtHR Series A No. 23, [104]. [13] Human Rights Committee Communication No. 52/1979 Delia Saldias de Lopez v Uruguay CCPR/C/OP/1 at 88 (1984); Human Rights Committee Communication No. 56/1979 Lilian Celiberti de Casariego v Uruguay CCPR/C/OP/1 (1981). [14] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 136, [110]; Loizidou v. Turkey (15318/89) Grand Chamber, ECHR 18 December 1996, [52]. [15] Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation) (Provisional Measures) Order of 15 October 2008 ICJ Rep 353, [109]. [16] Committee on Economic, Social and Cultural Rights, General Comment No. 23 On the Right to Just and Favourable Conditions of Work E/C.12/GC/23 (2016), [70]; Committee on Economic, Social and Cultural Rights, General Comment No. 20 Non-discrimination in economic, social and cultural rights E/C.12/GC/20 (2009); Committee on Economic, Social and Cultural Rights, General Comment No. 19 The right to social security E/C.12/GC/19 (2018); Committee on Economic, Social and Cultural Rights, General Comment No. 14 The Right to the Highest Attainable Standard of Health E/C.12/2000/4 (2000), [39]. [17] ICESCR, art 15(1)(a). [18] Committee on Economic, Social and Cultural Rights, General Comment No. 21 Right of everyone to take part in cultural life (art. 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights) E/C.12/GC/21 (2009), [6], [48]. [19] ICESCR, art 2(1). [20] ICCPR, art 8(1); Human Rights Committee, General Comment No. 22 Article 18 (Freedom of Thought, Conscience or Religion) CCPR/C/21/Rev.1/Add.4 (1993), [3]; Report of the Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir A/HRC/6/5 (2007), [10]; Heiner Bielefeldt, Nazila Ghanea-Hercock and Michael Wiener Freedom of Religion or Belief: An International Law Commentary (Oxford, United Kingdom, 2016), 22. [21] HRC General Comment 22, [4]. [22] For example, prohibiting prisoners from practising their religion (Boodoo v. Trinidad and Tobago; Poltoratskiy), making manifestations illegal (Malakhovsky v Belarus; Prince v. South Africa; Leven v. Kazakhstan), or directly interfering with natural resources used in religious rituals (Ogiek Decision, [166]). [23] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl, Germany, 2005) (2005), 411; Charles T Kotuby and Luke A Sobota General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes (Oxford University Press, New York, 2017), 22. See also ICJ Judge Sir Kenneth Keith’s comments in Mendelssohn v A-G, [14] and [16]. [24] ICCPR, arts 6(1), 17(2), 23(1), and 24(1). [25] Committee on Economic, Social and Cultural Rights, General Comment No. 21 Right of everyone to take part in cultural life (art. 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights) E/C.12/GC/21 (2009), [17]. [26] ICESCR, art 12; Committee on Economic, Social and Cultural Rights, General Comment No. 14 The Right to the Highest Attainable Standard of Health E/C.12/2000/4 (2000), [43.d]; Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health A/61/338 (2006), [56]. [27] Committee on Economic, Social and Cultural Rights, General Comment No. 3 The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant) E/1991/23 (1991), [9]. [28] ICCPR, art 18(3); ICESCR, art 4. [29] Olivier De Schutter International Human Rights Law (2nd ed, Cambridge University Press, United Kingdom, 2014), 339. [30] The Siracusa Principles on the Limitations and Derogation Provision in the Covenant on Civil and Political Rights’ (1985) 7 Human Rights Quarterly 3, [17]; The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights adopted in Maastricht on 2-6 June 1986, [50]; Metropolitan Church of Bessarabia v Moldova (45701/99) Grand Chamber, ECHR 12 December 2001, [109]. [31] The Siracusa Principles on the Limitations and Derogation Provision in the Covenant on Civil and Political Rights’ (1985) 7 Human Rights Quarterly 3, [25]–[26]. [32] ICESCR, art 4. [33] The Siracusa Principles on the Limitations and Derogation Provision in the Covenant on Civil and Political Rights’ (1985) 7 Human Rights Quarterly 3, [10]; Committee on Economic, Social and Cultural Rights, General Comment No. 21 Right of everyone to take part in cultural life (art. 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights) E/C.12/GC/21 (2009), [19]; Human Rights Committee, General Comment No. 22 Article 18 (Freedom of Thought, Conscience or Religion) CCPR/C/21/Rev.1/Add.4 (1993), [8]; Human Rights Committee, General Comment No. 31 The Nature of the General Legal Obligation Imposed on State Parties to the Covenant CCPR/C/21/Rev.1/Add.13 (2004), [8]. [34] Human Rights Committee Communication No. 1474/2006 Mr. Gareth Anver Prince v South Africa CCPR/C/91/D/1474/2006 (2007), [7.3]. [35] VCLT, art 31(1). [36] Patricia Birnie, Alan Boyle and Catherine Redgwell International Law and the Environment (3rd ed, Oxford Press, Oxford, 2009), pp. 627–628; Chidi Oguamanam International Law and Indigenous Knowledge: Intellectual Property, Plant Biodiversity, and Traditional Medicine (University of Toronto Press, Toronto, 2006), 81; Michael Bowman and Catherine Redgwell (eds) International Law and the Conservation of Biological Diversity (Kluwer Law International, London, 1996), 266; Silke von Lewinski Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore (2nd ed., Kluwer Law International, the Netherlands, 2008), 133; Francesco Francioni Biotechnologies and International Human Rights (Hart Publishing, Oxford, 2007), 206; Michelle F Rourke “Who are ‘Indigenous and Local Communities’ and What Is ‘Traditional Knowledge’ for Virus Access and Benefit-sharing? A Textual Analysis of the Convention on Biological Diversity and Its Nagoya Protocol” (2018) 25 JLM 707, 711–712. [37] North Sea Continental Shelf Cases (Federal Republic Of Germany v. Denmark; Federal Republic of Germany v. Netherlands), [1969] ICJ Rep 3, [74] and [77]. [38] Saramaka People v. Suriname, (2007) IACrtHR Series C No. 185, [138]–[140]. [39] OAU Model Law, Preamble; Andean Pact, art 5(1); Brazil: Law 13.123, art 5 XIII; IFPMA Guidelines, Objective. [40] The Hoodia Case (see Secretariat of the CBD (2008), 27). [41] Natura, Brazil (see, Secretariat of the CBD (2008), 79–82). [42] Certain Activities Carried Out By Nicaragua in the Border Area (Costa Rica v Nicaragua) (Compensation) [2018] ICJ Rep 1, [186]. [43] Pulp Mills on the River Uruguay (Argentina v Uruguay), [175]; Patricia Birnie, Alan Boyle and Catherine Redgwell International Law and the Environment (3rd ed., Oxford Press, Oxford, 2009), 202; Lilian del Castillo-Laborde Equitable Utilisation of Shared Resources (2010) MPEPIL (2010), [25]. [44] Trail Smelter Arbitration (United States of America v. Canada) (1941) 3 UN Rep Int'l Arb Awards 1905, 641; Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) [2015] ICJ Rep 665, [104]–[105]; Advisory Opinion OC-23/17 (2017) IACrtHR Series A No. 23, [95], [97]. [45] Leslie-Anne Duvic-Paoli and Jorge E Viñuales “Principle 2” in Jorge E Viñuales The Rio Declaration on Environment and Development: Commentary (Oxford University Press, 2015) 107, [2.1.2.2]; Permanent Sovereignty Over Natural Resources UNGA Res 1803 (XVII) (14 December 1962). [46] Trail Smelter Arbitration (United States of America v Canada) (1941) 3 UN Rep Int'l Arb Awards 1905; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, [29]; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, [430]; Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep, [187]; Respect to Activities in the Area (Advisory Opinion) [2011] Seabed Disputes Chamber ITLOS, [110]–[111], [223]; Advisory Opinion OC-23/17 (2017) IACrtHR Series A No. 23, [103]– [104]; International Law Association Study Group on Due Diligence in International Law: First Report (2014) 76 International Law Association Rep Conf 947, 974. [47] Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14, [187]; Respect to Activities in the Area (Advisory Opinion) [2011] Seabed Disputes Chamber ITLOS, [110]. This article is authored by Ahan Gadkari, a final year BA LLB Candidate at O.P. Jindal Global University. He also serves as a Research Assistant under Dr. Aniruddha Rajput, Member, United Nations International Law Commission.
Introduction In 2023, it will be 10 years since Lethal Autonomous Weapons Systems (LAWS) were put on the agenda of the meeting of the High Contracting Parties to the Convention on Certain Conventional Weapons (CCW). Although the case of autonomous weapons had already been debated for several years, the arrival of the subject within the CCW marked the beginning of multilateral discussions conducive to the adoption of an instrument to regulate these controversial systems. After several informal meetings of experts, the State Parties agreed in 2016 on the creation of a group of governmental experts, also presaging regulation. This upcoming anniversary is an opportunity to take stock of the progress made by this forum and, in particular, the nagging question of a treaty capable of supervising LAWS. In this regard, it should be noted that the very definition of LAWS is a subject of debate within the CCW. In any case, a line has been drawn by several states between the so-called fully autonomous LAWS and the others. Fully autonomous LAWS target systems which, once activated, preclude human intervention and are capable of resorting to force or modifying the framework of their mission. Such systems coming under an internationally binding instrument are of utmost importance. This contribution seeks to discuss the question of whether a binding instrument of LAWS is a possibility by analysing the positions of States on this issue and the progress made by the CCW. Will an International Legally Binding Instrument be Possible? More than 30 States now support the adoption of an international legally binding instrument for the regulation and prohibition of LAWS. The majority of States that encourage such an initiative are fairly underdeveloped countries, in any case, militarily weak, which in reality would not have the means to develop or buy and therefore use such systems. It must be noted, however, the singular position of China which, unlike other major military powers, has come out in favour of a legal instrument prohibiting LAWS like the Protocol on blinding laser weapons. China, however, gives a very restrictive definition of LAWS that could be subject to a ban and it is a safe bet that the negotiations on the scope of the treaty would be stormy as Chinese interests on this point seem to diverge from those of the other States party to a treaty. In this crusade, these States benefit from the active support of many civil society organizations, including Human Rights Watch and the notable collective known as the “Stop Killer Robot” coalition, whose closing statement in the CCW strongly supported creating a treaty for LAWS. In addition, the International Committee of the Red Cross, a flagship body for the promotion and development of the law of armed conflict (LOAC), has also come out in favour of binding rules on the prohibition and limitation of LAWS. The question of the possibility of a treaty on LAWS is all the more worrying as the narrow window which would have allowed the opening of negotiations now seems to be closed. The 6th CCW Review Conference, an event which took place in December 2021, which aimed to evaluate and amend the text, was particularly awaited on the issue of LAWS regulation. The adoption of a mandate to open negotiations for a treaty on LAWS was fiercely discussed and supported by the majority of States Parties, but without success. The causes of this failure lie in the procedural rules of the forum which require adoption by consensus of decisions and declarations. Due to the need for consensus, the proposal was destined to fail, since States such as the United States, Israel, South Korea, United Kingdom and Russia have formally opposed such a mandate. The reasons for their refusal are multiple. The first argument regularly put forward is of a legal nature and seeks to consider existing norms of international humanitarian law (IHL) as sufficiently armed against the LAWS. The United States and Russia indeed argue that the existing law is sufficient and that it does not require new binding rules. It is true that, as is often the case in law, the IHL is based on general principles, the flexible and dynamic nature of which cannot be denied, making it possible to apprehend new phenomena. It is precisely the new and recent nature of the LAWS which establishes another argument, on the technical level this time. States believe that it is too premature to discuss new rules, as technology continues to evolve and rules adopted today may no longer be viable tomorrow or, worse, will hinder beneficial uses on the military or even humanitarian levels. Indeed, without being clearly stated, another reason for this refusal obviously lies in the operational advantages of LAWS, presumed to be decisive by these States. The United States did not hesitate to point out that military efforts to develop more precise and effective weapons reflect a convergence between military effectiveness and humanitarian protection. According to them, developing LAWS would allow for better military performance and therefore better IHL compliance. It would therefore be counterproductive to ban them. During the discussions of the CCW in 2022, whenever States decided to recall their desire to adopt a binding instrument relating to LAWS, the persistent opposition of major military powers stunted them immediately. The proposal to emancipate from this forum and bring this issue under the scope of another body has also been raised. Some have cited the role that the United Nations General Assembly (UNGA) could play on this issue, as it already does for cyber security. A recent joint statement on LAWS made by Austria at the 77th Session of the UNGA seems to indicate that the UNGA could assume this role. The possible involvement of the Human Rights Council was also pointed out, where the question first emerged in 2013 before migrating to the CCW. In addition, there are precedents where international civil society initiatives have led to the adoption of binding instruments in the field of arms control, such as the Anti-Personnel Mine Ban Convention and more recently in 2017, the Treaty on the Prohibition of Nuclear Weapons. The simple fact that no nuclear power is a state party to the Treaty on the Prohibition of Nuclear Weapons illustrates the limits of such processes in the face of the desires of the big military powers. What impact might an arms control treaty have if the States most likely to use the weapons in question are not party to it? Although limited in scope, this would exert some form of pressure on States that would develop and use LAWS. This objective is also pursued through the possible adoption of a code of conduct in this area. Possibility for a Code of Conduct? If the military powers refuse to lose the operational advantage that the possession of LAWS would constitute, they remain for some, anxious to preserve the image of States respectful of international law. Alongside the legal and political arguments intended to justify the refusal of a treaty, several States have proposed as a palliative solution the adoption of non-conventional concerted instruments, that is to say non-binding. As early as 2017, France and Germany submitted the idea of a political declaration and a code of conduct which would contain politically binding rules and a list of voluntary transparency measures. The adoption in 2019 by CCW Member States of 11 Guiding Principles on LAWS has concretized the objective of a political declaration which recalls the role of humans in the use of LAWS and the applicability of international law to them. As for the code of conduct, the Franco-German duo, accompanied by Finland, Norway, Sweden, Spain and the Netherlands, proposed via a working paper in 2022 the possible structure of such a document. On this issue, the United States has had a fluctuating position. While, in 2017, they declared themselves against this type of initiative, they proposed, during the 6th Review Conference, to reflect on a code of conduct to guide the development and use of LAWS, probably to temper the wave of States militating for the opening of negotiations on a treaty. The United Kingdom was also in favour of a document which recalls the applicable law and compiles good practices, giving as an example the Montreux Document on private military companies or the Wassenaar Arrangement on dual-use goods. These two instruments now bring together many States and have a certain authority in their respective fields. In a similar or parallel way, the United Kingdom presented in 2022 a model IHL manual aimed at applying the principles of this law to the specific case of LAWS, similar to the Tallinn Manual on cyber operations and the San Remo Manual on armed conflict at sea. IHL manuals are often doctrinal works to which few States fully subscribe. It will therefore be up to the States to specify the terms of a code of conduct which will determine its effectiveness in relation to the aims they are aiming for. However, one can wonder about the adoption of such a document in view of the different interpretations of the LOAC expressed by these States within the CCW. These divergences will probably lead to a smooth text limiting itself to recalling general points on the subject. Moreover, it will be interesting to examine the reception and adherence to such an initiative by States and civil society in favour of a treaty. Will they be satisfied with the little granted to them or will they refuse any alternative to a treaty? Not only this, the scope of this instrument is also uncertain. Germany indicated that it was about a first step towards a treaty, while this design is formally rejected by the United States. Although the methods of adoption, the content and the scope of the documents proposed by the States are very different, they express the desire of some to take up new phenomena on the international legal level without necessarily being legally bound since these documents are not binding. In this regard, they are criticized by Treaty States who believe that these documents are only meant for diversion. It would be a matter of appeasing civil society by showing an interest in respecting IHL and its values while retaining some leeway in the interpretation of this right. However, it is not certain that a State could brazenly flout what it would have subscribed to in such an instrument. Despite their flexible nature, these documents do not always win the support of the States most concerned. For instance, China and Israel did not join the Wassenar Arrangement. Therefore, if a code of conduct is possible, its regulatory effect is at most: uncertain. So what can the next decade offer us in terms of LAWS regulation? On the one hand, a treaty that will only be ratified by small powers, which will, in fact, probably not be able to regulate LAWS, but which will benefit from the support of international actors with strong legitimacy. On the other hand, a code of conduct, the fruit of the limited converging interests of a few major military powers which will not, however, engage their legal responsibility. Very meagre will therefore be the contributions of these initiatives in view of the goals they pursue and in comparison with other arms control instruments. Concluding Remarks A LAWS treaty will have few opportunities to be implemented and nothing can be imposed on States that have not consented to it. A code of conduct, on the other hand, will easily be understood as an act that is above all political and moral in scope. But from a more optimistic angle, could we not see in these normative gesticulations the actions of an international community, which recognizes and responds to an international social need, that of apprehending the LAWS to avoid an increase or a facilitation of violations of IHL while preserving the military interest provided by the technologies which contribute to these systems. Instead of polarizing discussions on the instrumentum, should more attention be paid to negotium. As such, a treaty or code of conduct may be in the process of constituting the opinio juris of future customary norms in the matter. |
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