Sep 14 2017

Divorce versus Marital Rape: A Tale of Hypocrisy

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By Sachin Dhawan*

As per recent reports[1], the central government of India (the government) has, in response to a petition filed before the Supreme Court, defended the statutory exception permitting child marital rape. The validity of the controversial exception to Section 375 of the Indian Penal Code, which states that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”[2], has been challenged by the NGO Independent Thought.

The government has rightly been taken to task for its shocking stance towards child marital rape. In a brazen display of apathy, it pinned the blame for the social evil on “socio-economic realities”[3] implicitly washing its hands of the problem. In blithely condoning the heinous traditions that sanction the victimization of children, the government made its intentions clear: it was not interested in redressing the problem.

This antediluvian stand by the government is in stark contrast to the affidavit[4] it submitted last year in the case of Shayara Bano v. Union of India. There, it vigorously endorsed the demand for a constitutional abrogation of discriminatory divorce laws affecting Muslim women. The government went all out in this endeavor, proclaiming that “gender equality and the dignity of women are non-negotiable, overarching constitutional values and can brook no compromise”[5]. In this way, it positioned itself as the primary guardian of Muslim women’s rights.

Importantly, most of the affidavit is devoted to detailing the vast network of international covenants and agreements mandating the institution of gender just measures to alleviate the suffering of women. The government takes pains to remind the Court of its past pronouncements on India’s obligation to adhere to international law commitments on gender justice. Sharply expressing its indignation at the suffering of Muslim women due to the practice of triple talaq (instantaneous divorce), the government exhorts the Supreme Court to once again act on the basis of “international covenants to which [India] is a party”[6].

In embracing change for divorced Muslim women while upholding continuity for child brides, the government does not display a consistent attitude towards women’s rights. Indeed, the international obligations cited to uphold gender justice for Muslim women are all but forgotten when it comes to dealing with child marriage, a social evil practiced mostly by Hindus[7]. In such situations, the government prefers to “protect the institution of marriage”[8] rather than invoke India’s international obligations. Despite the severity of the concerns raised by Independent Thought, the government’s response was timid and meek, devoid of the alacrity with which it condemned gender injustice afflicting Muslim women.

Sadly, such behavior is reflective of past conduct of the government. Prime Minister Modi waxes eloquent about the plight of Muslim victims of divorce but has nothing to say about the many more non-Muslim women abandoned by their husbands[9]. Criticizing this employment of a double standard is not to deny the suffering of many Muslim women. However, the selective memory on display when it comes to international covenants suggests that the government’s interest in women’s rights is piqued when the women in question happen to be Muslim, that too on limited occasions[10]. The government’s aspiration to achieve the goals of gender justice as set out in a raft of international accords is laudable but it is an aspiration that should be pursued in the interests of all women.

* Sachin Dhawan is an Assistant Professor at Jindal Global Law School, India.

 

[1] https://scroll.in/latest/846733/centre-defends-ipc-clause-that-protects-husband-for-having-forced-sex-with-minor-wife

[2] https://indiankanoon.org/doc/623254/

[3] https://thewire.in/166569/minor-wife-rape-forced-sex/

[4] https://drive.google.com/file/d/0BzXilfcxe7yucHNsQXpXa0VuZk0/view

[5] https://drive.google.com/file/d/0BzXilfcxe7yucHNsQXpXa0VuZk0/view

[6] https://drive.google.com/file/d/0BzXilfcxe7yucHNsQXpXa0VuZk0/view

[7] https://thewire.in/39885/of-12-million-married-children-under-age-ten-84-are-hindus/

[8] https://thewire.in/166569/minor-wife-rape-forced-sex/

[9] https://thewire.in/86335/abandoned-women-triple-talaq/

[10] https://thewire.in/132084/bilkis-bano-rape-case-narendra-modi/

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Sep 9 2017

The Intense Battle between Indigenous Communities and Powerful Corporations

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By Raghav Trehan and Richa Sharma*

“I say this because I know that if you want to take care of the forest, you need to invest in us – indigenous peoples – because no one takes better care of the forest than we do.”

According to the Brazilian Government, the ongoing construction of the world’s 4th largest dam over the Xingu River is ‘eco-friendly’. The emission of methane gas which displaces oxygen surely sounds pretty eco-friendly to us. Obviously human beings inhale methane and exhale oxygen. Science, right?

The devastating effects of the Belo Monte Dam on the flora, fauna and riverside communities are definitely not ‘eco-friendly’. In fact, 400 square kilometers of the Amazon forest will be flooded by Belo Monte’s reservoirs. Of course, that’s not important. What’s more important is the millions of dollars these corporations will be earning through the exploitation of exhaustible natural resources.

Let’s have a look at what we need to know and what we need to DO!

Everything You Need to Know about the Belo Monte Project

With the aim of ensuring energy security in mind, 1975 saw the formulation of plans for the construction of new hydroelectric dams in Brazil. The initial plan consisted of 297 projects to be built in Brazil. A contract was signed with Norte Energia (a construction consortium comprising of Eletronorte, Neonergia, Cemig, Light, J Malucelli Energia, Vale and Sinobras) to build the project. With a capacity of 11,233 megawatts (MW), the estimated cost of the controversial Belo Monte project is £15bn, making it the 2nd largest hydroelectric dam in Brazil. The installation license for the project was issued by IBAMA (Brazilian Institute of Environment and Renewable Natural Resources) in 2011.

Officials at IBAMA were under serious pressure to give their approval for the project. In 2009, however, two senior managers decided to resign from their posts in opposition to the project. The Belo Monte has been widely criticized by environmental organizations across the globe, because of the severe damage it will inflict on the flora and fauna of the Amazon.

It will increase global warming and cause changes in landscapes.

“Each ton of methane has an impact on global warming about 200 times that of a ton of CO2 while it remains in the atmosphere, but methane remains for a relatively short time (12.4 years on average), whereas CO2 remains about ten times longer.”

-Philip Fearnside

The major downside to such a design specification is the significant shift in landscape required by the turbines; this is why Belo Monte requires a large reservoir; the area does not have a naturally occurring high hydraulic head (an example of a naturally occurring high water head is a waterfall).

-Apratim Guatam, Ian Haubold, Vicky Pacey, David Papirnik, Mehek Premjee and Patrick Schlumpf

Harsh Challenges Faced by the Indigenous Groups

More than 20,000 indigenous groups have been forced to relocate their houses. These groups are continuously losing all the basic necessities (such as food, medicinal crops watered by the river, transportation) that were provided to them by the Xingu River.

Cultural artifacts belonging to the tribes have been washed away by frequent floods. Some people have even lost their family members. The livelihood of riverside communities, which was completely dependent on the Xingu River, is now coming to an end. For thousands of years, this river has been a part of the Amazon ecosystem.

“For us the river means many things. For everything we do, we depend on the river. For us to go out, to take our parents around, to get medical attention, we need the river for all these things. If a dam is constructed on the river, how will we pass through it? … We don’t want to see the river closed off, our parents dying in inactivity. For us the river is useful and we don’t want it to wither away – that we not have a story to tell, that it become a legend for our children and grandchildren. We want them to see it with their own eyes.” – Zé Carlos Arara, a leader of the Arara people.

The local fishing industry has drastically declined as 16.2 million tons of fish have died due to a lack of oxygen. Even though irreparable damage has already been done, IBAMA ordered Norte Energia to pay a fine of $US 10.8 million as compensation.

Brazil has violated the United Nations Declaration on the Rights of Indigenous Peoples. Article 8 of the United Nations Declaration on the Rights of Indigenous Peoples says:

States shall provide effective mechanisms for prevention of, and redress for:

  • Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;
  • Any action which has the aim or effect of dispossessing them of their lands, territories or resources;”

Let’s Have a Look at what We May Lose Forever

White-cheeked spider monkeys, which are commonly found near the Xingu River, might be lost. Not only that, even the giant Amazon River turtles that specifically come to the Xingu River in order to lay their eggs are endangered. Another major loss includes Cacao crops – found near the banks of the Xingu River – that have already been wiped out by Norte Energia.

We may also lose a huge variety of Amazonian butterflies, 45 different types of honey, 16,000 tree species, 180 different tribal languages, some of the world’s most unique spiritual ceremonies, 1300 types of birds, 70% of Amazonian plants which are known to have anti-cancerous properties, Arawati tribes, 20% of the world’s oxygen, 3000 species of fish (including the pink dolphin), 400-500 indigenous Amazon tribes (out of which 50 have absolutely no contact with the outside world), and 1500 unique types of flowers!

What’s Lined Up Next? The Tapajos River!  

More hydroelectric dams such as Chacorão, São Luiz do Tapajós and Jatobá are to be built on the Tapajos River in the near future. Many riverside communities, including the Munduruku tribe, will be affected by the construction work of these dams. Thousands of people are continuously protesting against the proposed projects. The only people who will benefit by these projects are the investors and powerful corporations. The compensation provided by these corporations can never be compared to what’s being destroyed forever – our priceless environment.

What Can We Do to Help?

You can write a letter to the President of Brazil to express your concern.

Works Cited:

  1. Maíra Irigaray, ‘The Munduruku People: A Living History of Resistance’, http://amazonwatch.org/news/2015/0430-the-munduruku-people-a-living-history-of-resistance
  2. United Nations Declaration on the Rights of Indigenous Peoples available at: http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
  3. Rhett Butler, ‘10 Facts about the Amazon Rainforest’, http://rainforests.mongabay.com/amazon/amazon-rainforest-facts.html
  4. Philip Fearnside, ‘Dams With Big Reservoirs ‘, https://www.theglobalist.com/dams-climate-change-global-warming-brazil-paris-agreement/
  5. Apratim Guatam, Ian Haubold, Vicky Pacey, David Papirnik, Mehek Premjee, Patrick Schlumpf, ‘Brazil’s Belo Monte: A Cost-Benefit Analysis’, http://franke.uchicago.edu/bigproblems/BPRO29000-2014/Team09-EnergyPolicyPaperBeloMonte.pdf

*Raghav Trehan and Richa Sharma are 4th year students, pursuing their B.A. LL.B. (Hons.) at Fairfield Institute of Management and Technology, GGSIPU, New Delhi. They are keenly interested in human rights and environmental law. Currently, they are interning at the Delhi International Arbitration Centre.

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Aug 11 2017

Inside Immigration Detention

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By (Jason) Hung Yu Shing*

“The 2001 Detention Centre Rule states the purpose of detention centers shall be to provide for the secure but humane accommodation of detained persons in a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment, and to encourage and assist detained persons to make productive use of their time whilst respecting in particular their dignity and the right to individual expression.” – Mary Borsworth

Affluent countries, most notably Germany and Sweden, have cultivated a public image as moral nations, particularly over recent years. They are frequently praised for their willingness to host refugees fleeing from countries in turmoil. However, a 2015 report by the Office of the United Nations Higher Commissioner for Refugees (UNHCR) challenged these assumptions. In the report, the five richest nations in terms of GDP (the United States, China, Japan, the United Kingdom and Germany), hosted less than 5% of refugees in that year. In fact, over 86% of refugees are hosted in developing countries where resources are scarce. While developed countries endorse signing and sponsoring international conventions and resolutions in order to bolster refugee rights, their efforts in terms of hosting refugees are very limited.

To better understand this, Mary Bosworth, a professor from the University of Oxford, delves into the living conditions in 6 Immigration Removal Centers (IRCs) in London. She aims to unveil the inner story, and showcase the negative aspects, of those refugee hubs in London. Earlier this year, over 1 million British citizens signed the petition to bar U.S. President, Donald J. Trump, from debuting and speaking at the British Parliament, as an expression of their discontent upon immigration policies that became known as the “Muslim Ban.” In line with the local citizens, British political leaders, including Prime Minister Theresa May and Foreign Secretary Boris Johnson, overtly expressed their disagreement of the “Muslim Ban”, seeing such immigration policies as a violation of moral principles. Ironically, Bosworth reveals that the living conditions at IRCs in London were demeaning to most, if not all, detained refugees. One detainee named Singh, who doesn’t speak English, suffers from continuous racial harassment and assault from five white inmates. He is left both physically and mentally impaired, after having hot tea and soup thrown on him, and being struck with a metal tray (Bosworth, 2014: 44). With respect to all racially divisive situations, it is a shame that the responsible wardens deliberately overlook it.

The predominant reason is because many wardens, who are initially hired in the interest of detainees’ safety, lack the required sense of responsibility to fulfill their duties. Ammon, for example, as many other wardens, merely sees his job as a stepping stone to help him become a police officer in two years. Others, like Arvil, simply work as a detention officer because they need a stable income (Bosworth, 2014: 156).

Aside from the possibility to stay with violent and racist inmates, detained refugees in IRCs are forced to live with ex-prisoners because these detention centers are also former prisons. “Why do we lock up illegal immigrants beside violent criminals in our toughest jails?” MP Tom Clarke questions on behalf of the detainees (Page 44). Albeit the aforementioned 2001 Detention Center Rule unambiguously states that detainees should live in a secure, humane and relaxed environment, these vulnerable groups are in fact living in places where lives can be compromised, and dignity is undermined (Bosworth, 2014: 3).

May reiterates the British position to strengthen the immigration scrutiny and lower the amount of immigrants down to 100,000 or below. Therefore, May indirectly engenders more illegal immigrants sneaking into the United Kingdom with false identification. Hence, there are as many as nearly 3,000 refugees and/or asylum seekers detained in any of the IRCs daily (Bosworth, 2014: 2). If these immigrants were to be repatriated, it is most likely that they would be persecuted. As a result, these vulnerable groups are deadlocked – they cannot return to their socio-politically unstable home countries, nor can they legally reside in the United Kingdom.

References:

Bosworth, M. (2014), Inside Immigration Detention, pp. 2-3, 44, 156            available at: http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199675470.001.0001/acprof-9780199675470

Grinberg, E. (2017), “Travel ban: UK petition to stop Trump state visit hits 1 million”, CNN, available at: http://www.cnn.com/2017/01/29/europe/uk-petition-president-trump-ban-trnd/index.html

Norton, B. (2016), “The 5 richest countries host just 5% of refugees – 86% are in developing countries”, SALON, available at: http://www.salon.com/2016/06/10/the_5_richest_countries_host_just_5_of_refugees_86_are_in_developing_countries/

Wilson, E. K. et al. (2017), “Refugees, Migrants and World Order”, The refugee crisis and religion: secularism, security and hospitality in question, Rowman & Littlefield International

*(Jason) Hung Yu Shing:

– Visiting Summer Research Scholar at UCLA 2017

– Research Assistant at the University of Warwick 2017

– Research Presenter at International Conference of Undergraduate Research 2016

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Aug 4 2017

The Council of Europe Parliamentary Assembly and Conscientious Objection: A Political Trap Ahead for the European Court of Human Rights?

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*By Stephen Harsley

Despite its undoubted importance for the Swedish workforce, it is rare for the labour court system of Sweden to attract a great deal of international attention. However, in April 2017, a court ruling in the case of Grimmark v. Jönköping County Council brought interest and intervention from lawyers and religious activists from as far afield as the United States. The issue at stake was abortion, or rather the extent to which medical professionals (and specifically midwives) can be required to participate in patient care in this area.

Midwives in Sweden are required to assist in providing abortion related care, and the refusal of the claimant in the case to do so, meant she was unable to find a job in this field. However, the Swedish courts rejected a claim of discrimination based on religion, and the claimant (Elinor Grimmark) has already expressed an intention to appeal to the European Court of Human Rights. The case will be based on Article 9 ECHR (freedom of religion and belief), but more controversially, her lawyers and supporters have relied partly on a Council of Europe Parliamentary Assembly resolution on conscientious objection by medical professionals. The possible consideration of the resolution sets a dangerous political trap for the Court, should the case be deemed admissible.

Resolution 1763 on the Right to Conscientious Objection in Lawful Medical Care states that “No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion”. The European Court of Human Rights has previously made clear that Parliamentary Assembly resolutions can be used for the purpose of interpretation (see Demir and Baykara v. Turkey, §74) but has also confirmed that they are non-binding. The potential value of such resolutions comes from their ability to provide an overview of general European political consensus, something that can be highly useful when determining how wide the margin of appreciation should be for states. This is due to the fact that the Assembly consists of a representative sample of national parliamentarians, drawn proportionally from across the political spectrum. Where there is a lack of consensus amongst Member States, they can be granted a wider margin.

Taken at face value, this would seemingly make Resolution 1763 highly useful, particularly in a case where the extent of Sweden’s discretion to limit Convention rights to protect the legal rights of others will be at issue. However, here lies the political trap for the Court. The resolution was passed with 56 votes in favour, 51 against, and 4 abstentions. This means that only one in five members voted in favour, and the majority were not actually present. Those who were came from Conservative parties, despite a progressive majority in the chamber’s overall composition at the time. The Parliamentary Assembly has a quorum rule requiring one third of members to be present in order for votes to be valid. The problem with this is that the value of PACE resolutions is in their status as a representative sample. There is no requirement for the quorum to reflect the political balance of the chamber, meaning that resolutions can be passed that are not at all reflective of European political consensus.

Political independence is an area where the Court has walked a careful line on the issue of abortion in the past, with decidedly cautious rulings. A failure to distinguish between Parliamentary Assembly resolutions based on the composition of the chamber at the time of the vote could well throw away a precious form of independence. In addition, if the Court accords great value to a politically divided resolution, this may well encourage attempts to, in effect, legislate in the area of European human rights law by the Parliamentary Assembly, damaging the reputation of a vital institution, at a dangerous time.

Providing interpretive guidance and being legal binding are two very different things. When a document is legally binding, of course its contents should be abided by. However, for sources that provide interpretive guidance, such as a PACE resolution, their authority comes from the ability of the source to provide evidence of consensus. In this case, it is very hard to see how a document written by a minority of PACE members, largely from one end of the political spectrum can be seen as representative of Europe. Affording legal value to resolution 1763, or indeed any other resolution voted for in a similar manner, could well end up turning the Parliamentary Assembly into a de facto ECHR legislative body. This would be a real blow to the independence of the ECtHR and to the impartial application of European human rights law.

*Stephen Harsley is an advocacy intern with the International Planned Parenthood Federation. He holds an LL.M. in human rights from Maastricht University (Netherlands). 

Sources

Council of Europe: Parliamentary Assembly, Resolution 1763 (2010) on the Right to Conscientious Objection in Lawful Medical Care, 7 October 2010

Council of Europe: Parliamentary Assembly, Rules of Procedure of the Assembly, June 2016, Rule 42-Quorum.

Council of Europe: Parliamentary Assembly, Resolution 1763 (2010) on the Right to Conscientious Objection in Lawful Medical Care, 7 October 2010, Assembly Voting Results, accessed 22/05/17

http://assembly.coe.int/nw/xml/Votes/DB-VotesResults-EN.asp?VoteID=2212&DocID=13164

ECtHR, Demir and Baykara v. Turkey, Appl. no. 34503/97, Judgment of 12 November 2008

ECtHR, Dickson v. United Kingdom, Appl. no. 44362/04, Judgment of 4 December 2007, §78

Sveriges Radio, Anti-Abortion Midwife Supported by American Lobby, accessed 22/05/17

http://sverigesradio.se/sida/artikel.aspx?programid=83&artikel=6614458

Council of Europe, Parliamentary Assembly Working Structure, accessed 22/05/17

http://website-pace.net/en_GB/web/apce/parliamentary-representation

Scandinavian Human Rights Lawyers, Our Cases: The Case of Elinor Grimmark, accessed 29/05/17

http://humanrightslawyers.eu/human-rights/our-cases/the-case-of-ellinor-grimmark/

 

 

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Aug 1 2017

The Quandary of the Climate Change Migrants: Revisiting the Climate Change Displacement Co-ordination Facility and their Legal Status

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By Rudresh Mandal and Hardik Subedi*

Climate change today represents an onerous challenge to legal responsibility across geographical and inter-generational boundaries. Both the environmental as well as the social effects of global climate change are necessitating a re-imagination of the extant legal regime. With the rise of sea levels, storm-surges and inundation of the mainland, countries the world over will soon be faced by an enormous, previously unimaginable climate-induced human displacement crisis. To make matters worse, this issue of climate-induced migration is conspicuous in its absence from international legal instruments.

The threat of migration is especially grave for the Pacific Island nations, whose territories have already begun to be submerged. The Carteret Islanders, in 2003, often referred to as the world’s first climate change refugees, had to be evacuated due to the rise in the sea level. For the populace ofsuch low lying coastal communities, migration seems to be a distinct possibility, with their predicament only being magnified by the loss of their spiritual ties with their land and the impossibility of ever returning home. The problem of the climate refugees is however not limited to the Pacific Islands. Countries such as the Maldives, Bangladesh and Ethiopia are also struggling to cope with the consequences of the rise in sea levels. By 2050, approximately 150 million people are expected to be displaced by climate change. Thus, the need for an adequate and appropriate response of the global community is required to protect and assist those faced with forced displacement, premised upon notions of planetary loyalty and humanitarian concern.

A protest in Calgary on the predicament of Climate Change Refugees on the occasion of the International Day of Action on Climate Change.

However, these ‘climate refugees’ as they have come to be known (though the terminology itself is hotly contested, with alternative phrases such as climate-induced migrants, environmental refugees and so on being suggested) are currently devoid of any remedy in international law. The UN Refugee Convention does not recognize this class of people as ‘refugees’since climate/environmental causes are not enlisted within the Convention. For instance, Ioene Teitiota from the Pacific Island of Kiribati (an island-facing inundation), who sought asylum on grounds of persecution due to climate change, was refused the same by the New Zealand Supreme Court owing to the above short-coming in the Convention.

One of the proposals that was tabled in the preliminary drafts of the negotiating text of the 2015 United Nations Climate Change Conference (COP 21) was that of a ‘Climate Change Displacement Coordination Facility’ (hereinafter Displacement Facility). Though there is no clarity yet on the functioning of this set-up, the facility would primarily deal with displacement, migration and planned relocation of people whose livelihood and very existence are threatened by climate change. The proposal could not however find adequate public discussion and attention in the final agreement of COP 21 owing to its focus on other complex discussions hinging on limiting GHG emissions and preventing disastrous consequences of ‘anthropogenic interference with the climate system’. The rising magnitude of people at risk due to rising sea levels and other rapid-onset and slow-onset climate events make the issues surrounding climate-induced migration and the Displacement Facility too grave a topic to be left at minimal discussion.

Although the Displacement Facility has re-surfaced in the discourse on climate change, certainty on its functional mechanism and the corresponding legal framework to address the practicalities surrounding its operation is still lacking. The Paris Agreement without using the phraseology ‘Climate Change Displacement Coordination Facility’, has ‘requested’ (clearly in a non-binding manner) the Executive Committee of Warsaw International Mechanism to take the lead on operationalising the climate related displacement through a task force. However, the outcome of this stipulation is obscure since it is placed under the head of ‘Loss and Damage’ instead of ‘Adaptation’ thus making it difficult to establish its locus to demand funds under the Green Climate Fund and United Nations Framework Convention on Climate Change (UNFCCC) Adaptation Fund. Hence, the demand for alternate funds,especially when pinned on the argument of largest contributor of greenhouse gases to pay the most would be problematic after the withdrawal of the US (one of the largest emitters) from the Paris Agreement.

In order to develop a framework to ensure the functioning of the Displacement Coordination Facility, the UNFCCC could be made to work in tandem with the UN Security Council. The Security Council herein could ensure compliance by exercising its powers under Article 39 of the UN Charter. However, its exercise is conditional upon the existence of threats and breach of peace, and acts of aggression. Hence, such a suggestion seems presumptuous of the role of the Security Council. Further, the situation has been complicated after the withdrawal of one of the Security Council members from the Paris Agreement dissipating the likelihood of reaching a consensus on imposing sanctions in cases of non-compliance.

Therefore, it is important for having a clear mechanism on how the Displacement Facility operates with increasing climate-induced internal displacement and the threat of the Pacific Islands being submerged within a few decades. However, the Displacement Facility would only be able to tackle the urgent imperatives of relocation and rehabilitation of the climate-refugees. In the long run, an international treaty framework which accords recognition to ‘climate refugees’and which requires countries to accommodate them within their territory is required. The definitional problem will persist given the resistance from the stakeholders (the United Nations High Commissioner for Refugees in particular) to extend the protection under the 1951 Convention to climate-induced migrants. Therefore, alternative international actors and legal frameworks are required to be assessed to identify the best positioned one(s) to address this emerging, yet inevitable, concern. Given the contemporary paranoia towards refugees, it would be expedient to consider establishment of the Displacement Facility at the earliest in order to tackle the short-term requirements of the climate refugees, while stretching the limits of international law to accommodate these refugees in the long run.

Works Cited:

  1. Phillip Dane Warren, ‘Forced Migration after Paris COP21: Evaluating the ‘Climate Change Displacement Coordination Facility‘, https://www.jstor.org/stable/44028186.
  2. Maria Jose Fernandez, Refugees, ‘Climate change and International Law’, fmreview.org/climatechange-disasters/fernandez.html.
  3. Ameen Jauhar, ‘The Nowhere People’, thehindu.com/opinion/op-ed/The-nowhere-people/article16765025.ece.
  4. John Vidal, ‘Global Warming could create 150 million ‘Climate Refugees’ by 2050’, https://www.theguardian.com/environment/2009/nov/03/global-warming-climate-refugees.
  5. Jessica Wentz & Michael Burger, ‘Designing a Climate Change Displacement Coordination Facility: Key Issues for COP 21’, law.columbia.edu/sites/default/files/microsites/climate-change/unfccc_climate_change_displacement_coordination_facility.pdf?utm_content=bufferbc5b7&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer.
  6. Ad Hoc Working Group on the Durban Platform for Enhanced Action, ‘Working Document’, int/files/bodies/awg/application/pdf/adp2-10_8sep2015t1500_cwd.pdf.
  7. Neil Tweedie, ‘The World’s first Climate Change Refugees’, telegraph.co.uk/news/earth/carteret-islands/6752962/The-worlds-first-climate-change-refugees.html.
  8. ‘United Nations Charter’, un.org/en/sections/un-charter/un-charter-full-text/,
  9. ‘United Nations Framework Convention on Climate Change’, int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf.
  10. ‘The Paris Agreement’, https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf

*Rudresh Mandal and Hardik Subedi are 3rd year students, pursing their BA LLB (Hons.) at NALSAR University of Law, Hyderabad. They take keen interest in the intersection of environmental law and human rights.

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Jul 25 2017

A New Spate of Extra-Judicial Killings in Kenya: Redefining Rights and Obligations under International Law

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By Godfrey Mwango*

Introduction

On 1st April, 2017, Kenya’s television media [note: link to video contains potentially disturbing footage] broadcast appalling scenes of a young man being shot dead by the police in East Leigh, Nairobi.

The Black’s law dictionary defines extrajudicial as that which is done outside the course of regular judicial proceedings; not founded upon a court of law. Extra-judicial killings are acts of impunity that deny individuals the due process of law and the right to life as permitted by law.

The police in Kenya are enjoined to investigate criminal offences and also to enforce the law under Article 245 (4) of the Constitution and the provisions of the National Police Service Act, (Cap 84). Article 244 of the Constitution goes a step further by providing that the National Police Service must “comply with constitutional standards of human rights and fundamental freedoms”.

Requirement of the Due Process of Law

The general tenor of criminal law and procedure in Kenya is that the role of the National Police Service is limited to the establishment of reasonable suspicion on an accused person before preferring charges. The rest of the process is then left to the trial court to determine the guilt or innocence of an accused. In Francis Matheka & 10 Others vs. Director of Public Prosecutions and Another, HC Misc. App No. 362 0f 2014, the High Court asserted that only a trial court can make a finding whether or not a criminal offence was committed after hearing the evidence.

Article 2 (6) of the Constitution of Kenya domesticates any treaty or convention ratified by Kenya and provides that such instruments form part of the laws of Kenya. Article 26 (1) provides for the right to life and further emphasizes that this right can only be limited as authorized by the Constitution or any other written law. Article 50 provides that a suspect or an accused person must be subjected to the due process of law which embody the strict observance of the principles of natural justice. The due process of law is also captured under the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, both to which Kenya is a signatory.

Kenya’s Breach of Obligation under Domestic and International Law

The requirement of the due process of law is both a domestic and an international obligation that Kenya must observe when dealing with the accused or persons suspected to have committed crimes. Kenya must comply with the State’s obligations under the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. Under the auspices of the International Covenant on Civil and Political Rights,  every accused individual is to be subjected to a hearing. Article 14 of the instrument provides that the accused is to be informed of the nature of charge (s).

Article 10 of the Universal Declaration of Human Rights stipulates that every person is to be presented before an independent and impartial tribunal and is to be accorded fair and public hearing.

Conclusion

Succinctly put, the law is already cast in stone. The National Police Service have no legal authority to determine questions that affect the rights of persons suspected to have committed crimes. The Constitution is the grundnorm and must be respected by all the State actors including the police force. The goal of the Kenyan criminal justice system is not to brandish the sword of punishment of an individual by another or to settle personal vendetta. The course of justice is not to be actuated by ulterior motives or desire to oppress; but, by genuine concerns to render proportionate punishment on behalf of the public for a crime committed. The court is vested with this power and should dutifully guard against such motives that are incongruent to the goals of justice. It should safeguard against usurpation of the inalienable rights guaranteed by the Constitution. The fundamental principles of justice, which include fair play and decency, must not be profaned by the police, who are the high priests in maintaining law and order. The criminal justice system should not be reduced into a pawn by allowing the police to apprehend, prosecute, sentence and execute. The court should not, as it were, fold its arms and stare as the National Police Service execute citizens in broad daylight.

There is no justification for immediate retaliation by police against civilians under municipal law. Kenya is currently in breach of the State’s human rights obligations under both the municipal and international law. Acts of violation of Kenya’s obligations under international law by the National Police Service while discharging its mandate apportions responsibility of the State under the world order. It now behooves Kenya to take urgent remedial measures to ensure compliance with the State’s obligations under both domestic and international law, and to stop extra-judicial killings.

Works Cited

Black’s Law Dictionary 2nd edition available at: http://thelawdictionary.org/extrajudicial/

Video link available at: https://www.youtube.com/watch?v=ush2y3Nvdm4

Constitution of Kenya, Republic of Kenya, 2010 available at: http://www.kenyalaw.org/lex//actview.xql?actid=Const2010

National Police Service Act, Act no 11A of 2011 available at: http://www.kenyalaw.org/lex//actview.xql?actid=No.%2011A%20of%202011

Francis Matheka & 10 Others vs. Director of Public Prosecutions and Another, HC Misc. App No. 362 of 2014 available at: http://kenyalaw.org/caselaw/cases/view/113087/

United Nations Universal Declaration of Human Rights available at: http://www.un.org/en/universal-declaration-human-rights/

United Nations General Assembly, December 16, 1966, International Covenant on Civil and Political Rights, 2200A, New York available at: https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf

National Police Service of Kenya Website available at: http://www.nationalpolice.go.ke

*Godfrey Mwango is an L.L.B graduate of the University of Nairobi. He is currently undergoing the Advocates Training Programme at the Kenya School of Law, where he also serves as a Students’ President. He has a bias for Human Rights, Constitutional and Administrative Law. He has trained under the Honourable Peter Kaluma in the area of Constitutional Law and Judicial Review.

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Jul 19 2017

The Right to Health in the Context of HIV Healthcare in India: Some Thoughts on the New HIV Bill

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By Diksha Sanyal*

On April 11, 2017, the Indian Parliament passed the Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Bill, 2017 (hereinafter referred to as ‘Act’). This Act was viewed as an opportunity to make access to affordable HIV healthcare a right. However, the Act in its current form does not substantively provide for it. On the one hand, the government has assured in Parliament that treatment would be provided free of cost. Yet, the national budget for fighting  HIV/AIDS has been steadily declining over the last couple of years and could have been remedied by this Act. Instead, it is non-committal to the right to health and neglects the availability of treatment while disproportionately focussing on prevention. In this blog post, I briefly outline the Act’s conceptualisation of the right to health vis-à-vis the international framework.

The right to the highest attainable standard of health is a human right recognized in Article 12 of the ICESCR. The normative contents of this right are found in General Comment No. 14 to the ICESCR. Under international law, the nature of State intervention is measured against the benchmarks of ‘availability,’ ‘accessibility,’ ‘acceptability,’ and ‘quality’. Because of differing levels of resource constraints, the General Comment recognizes the principle of progressive realization and a minimum core obligation which the State must fulfil at all times regardless of resource constraints.

In the context of a global epidemic such as HIV, the State has an obligation under Article 44 (c) of the General Comment No. 14 to “take measures to prevent, treat and control epidemic and endemic diseases)”. There is also a non-derogable obligation to “provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs” under Article 43 of the same document. As per the WHO Model List of Essential Medicines, certain antiretroviral medications are classified as essential. These include medicines required for the treatment and prevention of HIV, specifically those for prevention of mother-to-child transmission and post-exposure prophylaxis. Despite not doing so, the Act should have made access to these essential services and medicines, a right.

Keeping the framework in the backdrop, I evaluate the 2017 Act which has come into force at a time when the HIV/AIDS control programmes in India are facing a severe budget cut. This has severely affected the availability of diagnostic kits and paediatric formulations of anti-retroviral drugs.

The law, following nearly three decades of campaigning, fails to bring a longevity and sustainability to the basic demands of the campaign. In terms of availability and accessibility, the Act fails to improve or strengthen the existing mechanism. In a complete mockery of the sustained campaign, Section 14 deals with the provision of Antiretroviral Therapy (ART) and Opportunistic Infection. It only obliges the government to take measures to provide these services “as far as possible.” It does not make this available to people as a matter of right. Section 46(2)(e) provides that the State may lay down guidelines for providing such treatment, thus leaving the entitlement completely in the hands of executive authorities.

Although free antiretroviral treatment, or ART, has been provided in India since 2004, the uptake remains low. Further, these clinics are neither easily accessible nor economically, physically or informationally available. National Aids Control Programme IV in fact aims to make second-line ART treatment free. However, given the steady decline of international funding in India for HIV since 2012 and domestic funding falling by 22% between 2014-2015 and 2015-2016 will severely compromise any plans to make treatment facilities more accessible. Currently, most efforts are directed at the prevention level with 68% of the NACP budget being allocated to HIV prevention. On the other hand, only 31% goes to treatment, care and support. With overall funding decreasing, this amount is going to fall in real terms.

The new law does not move beyond the prevention model to make access to safe treatment accessible. A study showed that physical and economic accessibility to treatment services remains low. The number of clinics set up so far has been way below the expected target.

Interestingly, in 1999, a public interest petition was filed before the Supreme Court of India seeking to address the barriers faced by HIV/AIDS patients in accessing treatment. Among other issues, access to second line ARV treatment also arose before the court. National Aids Control Organization argued in favour of its guidelines which provided that treatment would be made available free of cost to only to certain groups such as widows, children, persons below the poverty line and those who had been accessing this treatment under a government programme for at least two previous years. The lawyers of the petitioner argued on the other hand that these guidelines violated the right to equality under Article 14 and the right to life under Article 21. The court in W.P(C) No. 512 of 1999 on 1/10/2010 upheld the petitioners’ argument and indicated that such a scheme was against the constitutional order, thereby making the roadway for a universal access to HIV healthcare.

Instead of enshrining the principle of universal accessibility upheld by the Court, the Act relies on the language of ‘as far as possible,’ which leaves essential healthcare entitlements vulnerable to the whims and fancies of the executive.

Making access to HIV healthcare a right would have put pressure on the State to provide the necessary infrastructure for the realization of this right by providing a channel of accountability. Creating a statutory right to HIV healthcare facilities would have been easier to enforce given that much of the infrastructure to make such a right meaningfully accessible already exists, although requiring reforms. Moreover, it would have ensured better accountability and last mile delivery of services.

This would have ensured a true rights-based legislation. Rather, the current law will not force the State to invest in HIV treatment, only prevention. The current Act is a half- hearted attempt to engage meaningfully with the right to health for persons living with HIV/AIDS.

Works Cited:

The Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Act, 2017

What is the HIV/AIDS Bill: All Your Questions Answered, Indian Express, 13/04/2017, available at http://indianexpress.com/article/what-is/hiv-aids-bill-passed-parliament-lok-sabha-nadda-discrimination-4611167/ [Accessed 7 Jul. 2017].

Aditya Kalra and Zeba Siddiqui, Funding Crisis Puts India’s AIDS Programme and Lives at Risk’, Reuters, 24/07/2015, available at http://in.reuters.com/article/aids-india-funding-idINKCN0PY1JU20150724 [Accessed 7 Jul. 2017].

Office of the High Commissioner of Human Rights, CESCR General Comment No 14: The Right to the Highest Attainable Standard of Health (Art 12), 22nd Session of the Committee on Economic, Social and Cultural Rights, (11/08/2000),  E/C.12/2000/4, available at <http://www.ohchr.org/Documents/Issues/Women/WRGS/Health/GC14.pdf> [Accessed 7 Jul. 2017].

World Health Organization, “WHO Model List of Essential Medicines” (04/2015), available at < http://www.who.int/medicines/publications/essentialmedicines/en/> [Accessed 7 Jul. 2017].

See, Vina Vaswani and Ravi Vaswani, Perceptions of People Living With HIV/AIDS Regarding Access to Healthcare, 33, Journal of Medicine and Law, 64, 69-70, (2014)

HIV and AIDS in India, AVERT: Averting HIV and AIDS https://www.avert.org/professionals/hiv-around-world/asia-pacific/india [Accessed 31 May 2017].

Sankalp Rehabilitation Trust v. Union of India, P © 512/1999

*Diksha Sanyal graduated with a BA (LLB) Hons from the West Bengal National University of Juridical Sciences, Kolkata, India in 2016. She was employed as a litigator and researcher with the Centre for Law and Policy Research, Bangalore till April 2017 where she was involved in constitutional litigation and lawyering in the public interest on issues pertaining to disability rights, the right to education and health, among others.

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Jul 14 2017

5 Reasons Why Cooperation is Key for Development

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By Elisabeth Rochford*

The launch of the Sustainable Development Goals in 2015 focused the world’s attention on 17 “Global Goals” to be met by 2030. They highlight the significant challenges that lie ahead for every one of us, as a student, community member, policy maker or NGO worker. Goal 17 is to “Strengthen the means of implementation and revitalize the global partnership for sustainable development” – but just why are partnerships so important in sustainable development and why could cooperation be vital to achieving these goals by 2030?

  1. It works better

Locals commonly know best what is needed for their own communities, and local experience is a powerful tool and motivator. Local people are often expert guides in their own culture, environment, geography and society. However, strong state support and international resources can also be crucial to bolstering locals who may be lacking in capacity to act on their own. Through a combined effort from both communities and bigger organisations in setting up and maintaining development projects, the initiative can benefit from the varied expertise of all involved.

It can also mean that resources are better utilised in ways that are relevant and targeted to local needs. This avoids misinformed aid ideas, where good intentions can miss the point and fail to address the real social problems at play. Thorough cooperation and co-production can also improve transparency and accountability, reducing the possibility of corruption.

  1. It lasts

Cooperation between local and international actors leads to the improved sustainability of development projects. Locals often also have a great deal of influence in their community and can help promote development initiatives through informal local networks with greater success than international actors, who may be seen as untrustworthy or to have conflicting interests. In this way locals, as community organisers, may achieve greater support and cooperation in their locality for the development initiative, helping it last.

  1. It promotes equity and inclusiveness

High-quality programmes produced by locals and outsiders can promote equity and inclusiveness in communities, tackling issues of marginalisation and exclusion. By working together, local and international actors can ensure that resources are distributed fairly and everyone is involved in the process. This can mean a more equal power balance that also incorporates an external perspective, driven by a desire for fairness.

Inclusiveness between local and international agents in development initiatives can also help to engage those who might otherwise be marginalised in the wider processes to ensure that their rights and needs are recognised.

  1. It empowers local communities

When it comes to development, empowerment is a vital element in its success. Working with communities and involving locals in the decision-making and implementation of initiatives can empower them to assert control over their own development, and help them access resources and capacity needed to do so. It encourages self-reliance, helping to free people from control by mainstream political processes and manipulation or exploitation through unequal power relationships with the state or international actors. That’s why local people’s ability to negotiate with and to hold accountable the institutions and initiatives that affect their lives must be fostered and acknowledged.

  1. It ensures that we all get to play our part in the world

Ultimately, each and every one of us has an important role to play in global development and deserves to be given the chance to do so. Community development cannot operate in a vacuum, but needs local coordination via local government structures and support from international sectors. We need to foster greater development dialogue and cooperation rather than a simple bottom-up or top-down approach.

A successful sustainable development agenda requires widespread participation and the formation of partnerships between local and international actors. In the words of Ban Ki-moon: “To successfully implement the 2030 Agenda for Sustainable Development, we must swiftly move from commitments to action. To do that, we need strong, inclusive and integrated partnerships at all levels.”

It’s up to all of us who study global development, volunteer and aspire to make the world a better place to ensure true, productive cooperation between organisations or individuals with the resources for change, and those who seek to solve their own problems.

Works Cited:

  1. UN Sustainable Development Goal 17. https://sustainabledevelopment.un.org/sdg17
  2. Suzy Mmaitsi. “In Kenya, A Skill Can Turn A Girl From Bride Into Business Owner”. BRIGHT. https://brightreads.com/in-kenya-a-skill-can-turn-a-girl-from-bride-into-business-owner-30b5b9c19c38
  3. North Carolina State University. “Where Credit is Due: How Acknowledging Expertise Can Help Conservation Efforts”. ScienceDaily. https://www.sciencedaily.com/releases/2014/04/140408122139.htm
  4. World Bank. “Localizing Development: Does Participation Work?”. http://econ.worldbank.org/WBSITE/EXTERNAL/EXTDEC/EXTRESEARCH/0,,contentMDK:23147785~pagePK:64165401~piPK:64165026~theSitePK:469382,00.html
  5. Richard Stupart. “7 Worst International Aid Ideas”. Matador Network. https://matadornetwork.com/change/7-worst-international-aid-ideas/
  6. Adam Grech. “The Role of Aid Theft in Africa: A Development Question”. Development in Action. http://www.developmentinaction.org/the-role-of-aid-theft-in-africa-a-development-question/
  7. James Stewart. “Local Experts in the Domestication of Information and Communication Technologies”. http://www.tandfonline.com/doi/abs/10.1080/13691180701560093
  8. Lisa Cornish. “In an Era of Declining Trust, How Can NGOs Buck the Trend?”. DevEx. https://www.devex.com/news/in-an-era-of-declining-trust-how-can-ngos-buck-the-trend-89648
  9. Katy Jenkins. “Practically Professionals? Grassroots Women as Local Experts – A Peruvian Case Study”. Science Direct. http://www.sciencedirect.com/science/article/pii/S0962629807000996
  10. UN Research Institute for Social Development. “Social Inclusion and the Post-2015 Sustainable Development Agenda”. http://www.unrisd.org/unitar-social-inclusion
  11. World Health Organization. “Track 1: Community Empowerment”. http://www.who.int/healthpromotion/conferences/7gchp/track1/en/
  12. John Gaventa, Gregory Barrett. “So What Difference Does it Make? Mapping the Outcomes of Citizen Engagement”. http://www.gsdrc.org/document-library/so-what-difference-does-it-make-mapping-the-outcomes-of-citizen-engagement/
  13. “Goal 17: Revitalize the Global Partnership for Sustainable Development”. http://www.un.org/sustainabledevelopment/globalpartnerships/
  14. “Partnerships: Why They Matter”. http://www.un.org/sustainabledevelopment/wp-content/uploads/2017/02/ENGLISH_Why_it_Matters_Goal_17_Partnerships.pdf

*Elisabeth Rochford, MSc Human Rights student at London School of Economics and Political Science and Communications Intern at the Wonder Foundation.

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Jul 11 2017

Prohibition of Beggary Acts: Criminalizing a Way of Life and the Need to Amend These Laws

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*By P Avinash Reddy

The Bombay prevention of Begging Act (1959), The Karnataka prohibition of Beggary Act (1975) and twenty other Anti-Beggary laws have been enforced as a way of criminalizing the act of begging in India. These acts define ‘beggar’ as anyone who solicits or receives alms in a public place whether or not under any pretense such as singing, dancing, fortune telling, performing tricks or selling articles.” In so doing, they essentially prohibit individuals or groups from earning their livelihoods by performing in public places.

The Anti-beggary laws criminalize a particular way of life and have adversely affected the livelihoods of many communities, especially that of the traditional street performers. Busking is equated with begging in most Indian States and as a consequence, the traditional street performers are deprived of the opportunity to earn their livelihood. The provisions of Anti-Beggary laws are arguably in conflict with Article 23 (1) of the Universal Declaration of Human Rights and Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights, both of which explicitly recognize the right to work, which also includes the right to freely choose the kind of work an individual pursues.

Traditional street performances have been an integral part of Indian society for a very long time and anti-beggary laws have degraded them by bringing them under the ambit of begging. Individuals involved in these professions predominantly belong to certain tribal communities and it is the way of life that these communities have known, practiced and banked upon to earn their livelihood. Whenever they try to earn their livelihood through their performances, they face the wrath of the policing authorities . These laws are effectively wiping out certain cultures, traditions, practices and are imposing the dominant way of life on these communities.

The ‘Prohibition of Beggary Acts’ closely resemble laws passed between 1757 and 1871, that were enacted with the objective of suppressing thugs (dacoity and banditry) in India. More than trying to address the acts of banditry and dacoity, these laws focused on criminalizing the communities to which such individuals belonged. In effect, they propagated guilt by association and penalized individuals for being born into a certain group. In the pursuit of strengthening their position in India, the colonizers employed various tactics to subjugate and neutralize individuals or groups that were perceived to be a threat to their position in the hierarchy of power. While sheer physical violence was one of the most commonly employed tactics to subjugate the Indians, laws were used as the tool to legitimize and authorize such tactics.

The task of governing India had never been easy for anyone, especially due to the existence of varied cultures, languages, religions, sects and tribes. India has been and is home to groups which are constantly moving from one place to another without settling in any one particular place. This marked difference between the dominant and the nomadic groups proved to be vital in criminalizing the identity of certain tribes. The tribal way of life was seen to be barbaric by the Colonizers and as such, they enforced laws which criminalized it. This same tendency to perceive individuals or groups that do not conform to the dominant way of life as criminals, has perpetuated into the legislation of contemporary India.

While the Colonizers conceptualized crime as a profession of certain communities, the Anti-Beggary laws branded certain professions as criminal in nature. These Anti-Beggary laws are detrimental, on multiple levels, to the lives of the communities practicing these professions. By criminalizing their identities the colonizers forced the tribal communities to give up their nomadic way of life and similarly, the Anti-beggary laws are forcing the traditional street performers to settle in one particular place and adopt a way of life which is completely alien to them. This imposed transition, coupled with the absence of any sort of arrangements to ensure that these communities do not struggle to earn their livelihood, pushes them into destitution and deprives them of the opportunity to lead dignified lives.

Criminalizing traditional professions is no different than criminalizing the identity of the people practicing it, as these professions and identities are intertwined in such a manner that each one of them determines the value attributed to the other in society. Criminalizing certain professions can be conceptualized as a mode of establishing control over the individuals involved in such professions, by making them move away from their traditional professions and forcing them to adopt the dominant way of living. As such, there is a dire need to amend The Bombay Prevention of Begging Act, The Karnataka Prohibition of Beggary Act and other similar laws, in order to decriminalize traditional street performances and to ensure that such traditions, professions and cultures find their due place and space in the society without succumbing to the dominant culture.

Works cited

  1. Section 2 (2) (a), The Karnataka Prohibition of Beggary Act, 1975, http://dpal.kar.nic.in/.%5C27%20of%201975%20%28E%29.pdf.
  2. Swati Janu, Wealthy Indians and colonial-era laws have wiped out snake charmers and street magicians, Quartz India, 8th May 2017, https://qz.com/978116/wealthy-indians-and-colonial-era-laws-have-wiped-out-snake-charmers-and-street-magicians/.
  3. Shoma A. Chatterji, A balancing act, One India One People, 1st January 2017, https://oneindiaonepeople.com/a-balancing-act/.
  4. Swati Janu, Where have all the snake-charmers and street magicians gone? A Raj-era law might be to blame, in, 4th May 2017, https://scroll.in/newsrepublic/832448?s=cm.
  5. Henry Schwarz, Constructing the Criminal Tribe in India, Introduction, p.3, https://drive.google.com/file/d/0B1_bt1xcwr-IRXZsN2xITTVyWms/view?usp=sharing.

*P Avinash Reddy is a third year LLB student at NALSAR University of Law in Hyderabad, India and Co-Founder of DEVISE (Developing Inclusive Education).

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Jul 7 2017

Non-Refoulement as Lex Specialis?

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By Jenny Poon*

Academic debates often surround whether refugee law is lex specialis, so that when both refugee law and human rights law apply in the same scenario, refugee law will take precedence over and displace the human rights law norm. I suggest that both refugee law and human rights law should apply in the scenario where the exception to non-refoulement applies – i.e. when a refugee is sent back where he or she has been deemed to be a danger to the community or a national security risk (Refugee Convention, art 33(2)). Here, a normative conflict arises where lex specialis as a legal interpretive tool may be potentially triggered. Displacing this norm is potentially dangerous in the scenario where the refugee is being sent back to persecution (currently permitted under Article 33(2)), when human rights law is supposed to protect the refugee from being sent back to torture or inhuman degrading treatment or punishment. However, where the future violation does not rise to the level of torture or inhuman degrading treatment or punishment, the refugee will be sent back to persecution. Here, neither a strict reading of refugee law nor human rights law is able to offer protection to the refugee being sent back under the exception to non-refoulement as a result of the operation of the lex specialis principle, permitting refugee law to displace human rights law.

Non-Refoulement as Lex Specialis in the Refugee Context

Lex specialis is a legal doctrine used to aid interpretation of legal norms in situations of normative conflicts (ILC report, p. 34-35). According to an International Law Commission (ILC) report, the maxim lex specialis states where a matter is being regulated by both a general and a specific rule, the latter will take precedence. Lex specialis should only be invoked as an interpretative aid in cases where there is some actual inconsistency between the general and specific rule, or otherwise in situations where the application of one provision will exclude the application of the other (‘Articles on State Responsibility’, art 55). As the International Court of Justice held in the Nuclear Weapons case, lex specialis was only invoked to determine the meaning of the general provision in the right not to be arbitrarily deprived of one’s life in the context of armed conflict in relation to the more specific rule applicable under international humanitarian law (‘Nuclear Weapons case’, p. 240).

According to Jane McAdam, the Refugee Convention is a type of lex specialis with respect to the status it confers on protected persons (McAdam, p. 4). McAdam asserts that although the Refugee Convention is considered lex specialis, it does not displace the lex specialis nature of human rights law, but rather complements and strengthens its application. In this sense, human rights law and refugee law act together and complement one another to broaden the scope of international protection for persons of concern. For instance, human rights law covers the gap that exists where non-refoulement obligations do not apply as is the case for asylum claimants found to be a danger to the community or national security of the country where they have been convicted of a serious crime under Article 33(2). As stated in the preamble of the Refugee Convention, the purpose of the instrument is to ensure ‘refugees [are given] the widest possible exercise of […] fundamental rights and freedoms’ (Refugee Convention, preamble). Furthermore, refugee law does not supersede human rights law as lex specialis where the human rights norm or instrument provides greater protection than offered by refugee law (Persaud, p. 5).

Non-Refoulement in the Broader Human Rights Context

Some scholars have posited that the lex specialis nature of non-refoulement in the refugee context is necessary to ensure adequate protection for persons of concern, including, but not limited to, asylum claimants and refugees. International human rights law in and of itself is inadequate as a source of substantive protection for asylum claimants and refugees. For example, although human rights law requires states to protect the rights of persons within their jurisdiction and control, the quality of such rights may vary depending on the legal status of the person concerned vis-à-vis the State (McAdam, p. 5). McAdam asserts that international human rights law creates a gap between rights guaranteed and rights implemented.

McAdam argues that, in contrast with human rights instruments, the Refugee Convention is ‘unique in creating a legal status for its beneficiaries,’ and, despite lex specalis, the rights contained in the Refugee Convention are not superior to those in universal human rights instruments, but are applied differently and have been extended by the latter (Complementary Protection, p. 6). According to McAdam, for international refugee norms, states tend to regard Convention rights as a status required by international law, while for human rights norms, state practice may not always follow as a result of poor implementation of those norms. Other scholars such as Vincent Chetail argue that the Refugee Convention cannot be lex specialis because general human rights norms cannot be dissociated from their treaty body interpretations, which may result in more precise understanding of the norm than their refugee law counterparts (Chetail, p. 19-72). Chetail argues that ‘human rights law is the primary source of refugee protection, while the Geneva Convention is bound to play a complementary and secondary role’.

I suggest that reading refugee law (or non-refoulement) as lex specialis so that it displaces human rights law in situations where the refugee is sent back to persecution as permitted under Article 33(2) may create the potential danger of overly emphasizing the Refugee Convention as a specialist instrument. At the same time, the intersections between refugee law and human rights law should not be understated. In spite of this, I suggest that the two branches of international law should be interpreted as working to complement one another to offer the widest possible protection for refugees and individuals seeking asylum, rather than an interpretation where one would take precedence over the other in situations where normative conflicts arise.

Works Cited

Convention Relating to the Status of Refugees 189 UNTS 137 (adopted 28 July 1951, entered into force 22 April 1954) at preamble, art 33(2)

International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law – Report of the Study Group of the International Law Commission, UN Doc A/CN.4/L.682, 13 April 2006, pp. 34-35.

International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, 2001 at art 55.

International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, pp. 240.

Jane McAdam, “The Refugee Convention as a rights blueprint for persons in need of international protection”, UNHCR Research Paper No 125, July 2006, pp. 4-5.

Santhosh Persaud, “Protecting refugees and asylum seekers under the International Covenant on Civil and Political Rights”, UNHCR Research Paper No 132, November 2006, pp. 5.

Jane McAdam, “Complementary Protection in International Refugee Law” (Oxford: OUP, 2007), pp. 6.

Vincent Chetail, “Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law” in Ruth Rubio-Marin (ed) Human Rights and Immigration (Oxford: OUP, 2014), pp. 19-72.

*The author is a Barrister & Solicitor in Ontario, Canada, and a Ph.D. Candidate at the Faculty of Law of the University of Western Ontario, Canada, where her research looks at the principle of non-refoulement as a norm in both international and European law. The author was a Visiting Study Fellow at the University of Oxford, Refugee Studies Centre for Trinity Term 2017. All views and any errors are the author’s own.

 

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