__MAIN_TEXT__
feature-image

Page 1

NILS Law Review

November, 2014

Vol. 1


NILS Law Review

November, 2014

Vol. 1


NILS Law Review

November, 2014

International Board Pratik Bakshi, President Joan Salihi, Secretary General Dan Morosan, Vice President (Competitions) Tejaswini Ranjan, Vice President (Events) Cristina Sasa, Vice President (Marketing) Andrada Florea, Vice President (Publications) Jan Alexander Linxweiler, Vice President (TIE)

Editorial Board Andrada Florea, Editor-in-Chief Anandini Kumari Rathode Devarshi Mukhopadhyay Francesca Esposito Gauri Anand Ioana Stupariu Pratik Bakshi

Vol. 1


NILS Law Review

November, 2014

Vol. 1

The NILS Law Review is published by the members of the Network for International Law Students (NILS). The NILS Law Review publishes material on subjects of interest to the legal profession. The NILS Law Review invites unsolicited manuscripts for publication. Such manuscripts should be sent in MS Word (.doc/.docx format) to vp-publications@thenils.org. All citations and text generally conform to The Bluebook: A Uniform System of Citation (19th Ed.) All rights reserved. No article or part thereof published herein may be reproduced without the prior permission of the NILS Law Review. For all matters concerning rights and permission, please contact the Vice President (Publications) of NILS at vp-publications@thenils.org. The views expressed in the articles published in the issue of NILS Law Review are those of the authors and in no way do they reflect the opinion of the NILS Law Review, its editors or The Network for International Law Students.

Recommended form of citation: (2014) 1 NILS L.R.


NILS Law Review

November, 2014

Vol. 1

Contents

Message from the President, NILS International Board ............................................................ 6 Application of Equity in International Law: A Flawed Surmise? ............................................ 7 Child Soldiers in Terrorist Outfits: Combating the Collateral Damage to Civil Society in a War of Ideology ....................................................................................................................... 20 Apathy towards Gender and Human Rights Violations across International Boundaries ....... 33 State Responsibility for Projects Causing Transboundary Effect on Environment: An Analysis.................................................................................................................................... 47 Arbitrating Competition Law Issues: A Critical Analysis in the Context of the Indian Competition and Arbitration Law Regimes ............................................................................. 60 Dilemma of Continuing with Armed Forces (Special Powers) Act in Jammu and Kashmir, India ......................................................................................................................................... 68 Inter-Country Adoption: Leading to Compassionate Caring or Exploitation? ........................ 78 Nuclear Weaponry and Popular Culture: A Humanitarian Analysis of RAFAEL‘s Nuclear Arms Promotional Video in India ............................................................................................ 95 Rape: The Lesser Known Casualties of War ......................................................................... 108 Right to Health vis-à-vis Patent Protection ............................................................................ 119 Sovereign Immunity Over Merchant Vessels: Testing the ‗Commercial Activity‘ Exception Tests ....................................................................................................................................... 130 The Myth of International Rule of Law - In context to the Kadi Decision ........................... 147 Validity of Legislative Security Council Resolutions ........................................................... 157 Trade Secret Law: Intellectual Legal Right Protection and Issues in India ........................... 173 Possible Effects of TRIPS on Patents in India ....................................................................... 198


NILS Law Review

November, 2014

Vol. 1

Message from the President, NILS International Board

It gives me immense pleasure to be a witness to the launch of the Inaugural Issue of the NILS Law Review of The Network for International Law Students (NILS). In furtherance to the objectives of the organisation, the members have undertaken this initiative to promote legal research and bring out this Law Review focussing on issues of contemporary legal significance. The members have done a commendable job in bringing out this Issue in such a short span of time. They have displayed the quality of utmost persistence and I hope that they continue to work for this Law Review with greater zeal, dedication and commitment. I would further like to add that the members have proved their scholarly and analytical skills to carry out the editorial work in an effective and time-bound manner. They have also shown managerial and organizational ability of the highest order. I am also grateful that the organisation has been able to provide an opportunity to the students to unleash their energy for this cause. It has been a great pleasure to work with them. I wish NILS Law Review a grand readership and congratulate the Editorial Board for successfully bringing out this Issue. We would love to receive comments and suggestions on the research work published in this Issue. Suggestions for improving the quality of this Law Review are most welcome.

Pratik Bakshi President, International Board NILS


NILS Law Review

November, 2014

Vol. 1

Application of Equity in International Law: A Flawed Surmise? -

Dhruva Sareen & Shreya Mathur1

Introduction When general rules produce substantial unfairness, other rules, or another body of rules, must be applied to mitigate the severity of the rules of law.2It has long since been held that whatever the legal reasoning of the court, its decisions must be just by definition, and therefore in that sense, equitable.3And so has arisen the scope of equity in the field of international law. The rule of equity, as it has grown, demands reasonableness and good faith in the interpretation and application of treaties.4 Equity cannot hold a dominant position in the field of international law; however, it is capable of adopting a soft interpretation of a law to temper the rigidity of the law without conflicting it.5 Matters before the International Court of Justice [Hereinafter ―ICJ‖] have sometimes been seen to be relying heavily on the equitable principles of good faith and fairness. The authors have segmented the paper into three parts: Part I aims to portray the current jurisprudence regarding equity in international law; Part II deals with the advocacy prevalent regarding the application of equity in international law for the future generations; and Part III depicts the authors‘ contention regarding the use of equity and its loopholes. The Place of Equity in Present International Law Equity aims at proper application of law in particular cases in order to avoid decisions that are a reflection of abstract principles detached from the circumstances that a court or

1

Student of III year, BBA.LL.B., National Law University, Jodhpur. Authors can be reached at dhruvasareen@gmail.com and shreya.mathur.5@gmail.com respectively. 2

MEGARRY, R.L. & BAKER, F.W., SNELL‘S PRINCIPLE OF EQUITY, 26th ed., 1966, p.5 as cited in ZIMMERMAN, ANDREAS ET. AL. (ED.), THE STATUTE OF INTERNATIONAL COURT OF JUSTICE: A COMMENTARY, 1st ed., Oxford University Press, 2006, p. 724. 3

SeeNorth Sea Continental Shelf Case, ICJ Reports (1969) 3, ¶ 88.

4

Schwarzenberger, Georg, Equity in International Law, THE YEAR BOOK OF WORLD‘S AFFAIRS (London), 1972, p.357. 5

See generally RACKHAM, H. (TRANS.), ARISTOTLE‘S THE NICOMACHEAN ETHICS, 1934, p.317


NILS Law Review

November, 2014

Vol. 1

arbitration tribunal may face.6 Even though the principles of equity have long withstood as a newel of international law, and have been duly applied by the international tribunals 7, equity has often been derided as content-less norm8. However, it has not remained an abstract concept in the mould of international jurisprudence with the ICJ denoting it as an application of substantive rules of international law with due regard to justice and fairness. 9 Equity in international law is responsible of developing the law of customs.10By virtue of this, equity and equitable principles are similar terms. The element of indeterminacy embedded in such expressions is highlighted whenever such terms need to be inter-culturally construed.11 The equitableness of a principle must be assessed in the light of its usefulness in arriving at an equitable result.12 In essence, they remain virtually synonymous with reasonability and due fairness. The use of equitable principles has been marked particularly in the UN Convention on the Law of the Sea, 1982.13Art 59 of the said convention14 provides that the conflicts between the states regarding the exclusive economic zone are to be resolved on the basis of equity. Equity grants discretion to decision makers, primarily judges and arbitrators, where existing norms are too crude to be applied to specific matters, such as in cases dealing with the delimitation of boundaries.15 The doctrine has facilitated a mechanism for the resolution

6

Manfred Lachs, Equity in Arbitration and in Judicial Settlement of Disputes, (1993) 6 LEIDEN J INT‘L L 32, p. 291. 7

See Per Hudson J, River Meuse Case (Netherlands v Belgium), (1937) PCIJ Ser. A/B No. 70; Temple ofPreah Vihear Case, 1962 ICJ Rep 6; Frontier Dispute Case (Burkina Faso v Mali), 1986 ICJ Rep 554. 8

Franck, T. Equity in International Law, in JASENTULIYANA, NANDASIRI (ED.), PERSPECTIVES ON INTERNATIONAL LAW, Kluwer Law International, 1995, p.23 9

See generally Rann of Kutch Arbitration (India v Pakistan), (1968) 50 ILR 2; See alsoDIXON, MARTIN, TEXTBOOK ON INTERNATIONAL LAW, 4th ed., 2000, p. 41. 10

See generallyTHIRLWAY HUGH, THE SOURCES OF INTERNATIONAL LAW, 1st ed., Oxford University Press, 2014, p.107. 11

KOSKENNIEMI, MARTTI, FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT, Cambridge University Press, 2005, p.39 12

Tunisia-Libya Continental Shelf Case, Reports 1982, p.59

13

SHAW, MALCOLM N., INTERNATIONAL LAW, 6th ed., (New Delhi: Cambridge University Press), 2008, p.108

14

See also Art. 83, UN CONVENTION ON THE LAW OF THE SEA, 1982; Art 74, UN CONVENTION ON THE LAW OF 1982, Art. 140,UN CONVENTION ON THE LAW OF THE SEA, 1982.

THE SEA, 15

BENVENISTI, EYAL& HIRSCH, MOSHE (ED.), THE IMPACT OF INTERNATIONAL LAW ON INTERNATIONAL COOPERATION: THEORETICAL PERSPECTIVES, Cambridge University Press, 2004, p.106.


NILS Law Review

November, 2014

Vol. 1

of dispute within the confines of the international law matrix that encompasses unpolished principles. The doctrine authorizes judges or arbitrators to balance out the considerations that are relevant to the intricacies of a particular case.16 Equity has also led to an incentive-creation for global users or trans-boundary resources to efficiently act in cooperation with their neighbours. It has ensconced itself in the hearth of the international law matrix with itself being now recognized as a general principle of law. The authors have further bifurcated the jurisprudence into two: Part A discusses the distinction of the equitable principles from the application of Art. 38 (2) of the ICJ Statute; while, Part B discusses equity‘s application through contra legem and infra legem. Equity as distinguished from ex aequo et bono To understand what equity is, it is essential to first understand what equity is not.17 Article 38 (2) of the Statute of the ICJ empowers it, with the consent of parties, to adjudicate cases ex aequo et bono: that is, outside the framework of the law. Adjudication ex aequo et bono leads to a creation of new legal relations between the parties, as opposed to the rules of equity which form part of international law as, indeed, of any system of law. 18An international Tribunal will have the wider power to adjudicate a case ex aequo et bono, and thus to go outside the bounds of law, only if such power has been conferred on it by mutual agreement between the Parties.19 However, as it is known, no case has been submitted to ICJ in which the parties have granted the court the exceptional power to decide ex aequo et bono20, possibly because of the reason that Oppenheim21 propounds which entails the theory that in 16

See generally MIYOSHI, MASAHIRO, CONSIDERATIONS OF EQUITY IN THE SETTLEMENT OF TERRITORIAL AND BOUNDARY DISPUTES, (19993), p. 173. 17

THOMAS M. FRANK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS, p. 54 [Hereinafter THOMAS FRANK]. 18

SIR HERSCH LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT, 213 (1958)as seen in THOMAS M. FRANK, supra note 18 at p. 54;See also R.Y. JENNINGS, EQUITY AND EQUITABLE PRINCIPLES, 42Annuaire Suisse de Droit International 27, 35 (1986) (asserting that the ICJ‘s application of equity is ‗very different from the decision ex aequo et bono‘). 19

RANN OF KUTCH ARBITRATION, supra note 10.

20SHAW, supra note 14 at p. 97. 21

MCCAFFREY, STEPHEN, UNDERSTANDING INTERNATIONAL LAW, 2006, p. 67 as cited fromMURPHY, JOHN, INTERNATIONAL LAW: HARD CHOICES FOR THE WORLD COMMUNITY, Cambridge University Press, 2010, p. 28.


NILS Law Review

November, 2014

Vol. 1

case of the said, the decision instead of being based on legal rules will be based on the considerations that the court may deem just and proper. A lot of academic furore has emerged regarding the existence of ex aequo et bono as separate from the concept of equity. Although equity is part of international law, it cannot operate in a legal void.22 The Permanent Court in the Free Zones Case23 regarded the power of a court to give a decision ex aequo et bono as distinct from the general principle of equity. However, this remains disputed. The drafters of the General Act of Geneva, 192824 envisaged the two as synonymous concepts. However, certain scholarly opinions attribute the existence of equity in ex aequo et bono. Professor Bin Cheng25 has argued that the "equity" of the ex aequo et bono clause includes pure equity26 in all its forms and comprehends equity as not only secundum legem, and praeter legem, but also, if necessary, as contra legem.27 The courts are empowered to decide issues through equity under the guise of ex aequo et bono.28 In essence, equity forms part of the law whereas the other doesn‘t, with the primary distinction between the two being the authorization of the parties.29 The application of equitable principles does not require the consent of the concerned parties but an award under ex aequo et bono does; and thus, the courts have applied equitable principles wherever required instead of the latter to evade the possibility of the award being set aside. The two concepts were most prominently distinguished by Hudson, J in the River Meuse Case. He opined that, The Court has not been expressly authorized by its Statute to apply equity as distinguished from law ... .Article 38 of the Statute expressly directs the application of "general principles 22

Per Evensen J (ad hoc), Tunisia v Libya Jamahiriya, 1982

23

(1930), PCIJ, Ser. A., no. 24

24

See Art. 28, General Act of Geneva, 1928.

25

BIN CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS 19-20 (1953). 26

ROSENNE, THE INTERNATIONAL COURT OF JUSTICE 428 (2d Printing 1961) (Discussing The Court‘s Use of the Anglo-Norwegian Fisheries Case, 1951 I.C.J. 116) 27

CHENG, supra note 26.

28

See generally THIRLWAYsupranote 11.

29

See SABAHI, BORZU, COMPENSATION AND RESTITUTION IN INVESTOR-STATE ARBITRATION: PRINCIPLES AND PRACTICE, 1st ed., Oxford University Press, 2011 p. 186.


NILS Law Review

November, 2014

Vol. 1

of law recognized by civilized nations," and in more than one nation principles of equity have an established place in the legal system. The Courtâ€&#x;s recognition of equity as part of international law is in no way restricted by the special power conferred upon it "to decide a case ex aequo et bono, if the parties agree thereto." It must be concluded, therefore, that under Article 38 of the Statute, if not independently of that Article, the Court has some freedom to consider principles of equity as part of the international law which it must apply. Equity operates as an ameliorating and adjusting factor in the decision-making process of international law, without reference to an independent international jurisprudence or a separate tribunal;30through support, promotion and implementation of socially validated entitlements, benefits and satisfactions. This being said, a better term to describe the equitable principle under ex aqueo et bono clause is conciliation. Essentially, a judgment delivered under ex aequo et bono, would mean that the Court would have to decide according to nonlegal principles of justice, of morality, of usefulness, of political prudence, and of common sense, which a municipal legislator or court would apply in a similar internal dispute, or which reasonable parties would adopt as their basis in concluding a treaty. 31 Thus lays the quintessential difference between the applications of equitable principles under Art. 38 (1) and Art. 38 (2) of the ICJ Statute. Awarding Equity through Infra Legem, Praetor Legem and Contra Legem Art 38 (2) of the ICJ statute contemplates the hypothesis of equity contra legem (i.e. in opposition to law) or praetor legem (i.e. or outside the law). However, specific consent by the parties is required in order to resort to this concept of equity, which entails the creation of individualized rules by the judge for the settlement of the dispute ex aequo et bono.32Equity prescribed by law33 often occurs in the cases of treaties or rules of customary international law prescribing application of equitable principles or just treatments. However, there are certain instances when a request is relegated to the court to apply equitable principles outside

30

Goldie, L.F.E., Equity and the International Management of Transboundary Resources, 25.3 NATURAL RESOURCES JOURNAL 669, p. 673. 31

F. BERBER, RIVERS ININTERNATIONAL LAW 266-67 (1959)as cited fromGOLDIE, L.F.E., Ibid..

32SHAW, supra note 14 at p.97. 33

Equity praeterlegem


NILS Law Review

November, 2014

Vol. 1

the scope of the said law.34 When equity is used as a system of norms and principles, falling outside the scope of the law or even serving as an antithesis to the law instead, the question arises as to whether special agreement is always necessary to warrant such use of equity. From a formal point of view, Art. 38 (2) ICJ statute serves as an answer to the abovementioned question which lays down the explicit requirement of the consent of the parties to a dispute for the ICJ to decide cases ex aequo et bono.35 But, this provision also provides for instances in which the judge may decide to use equity praeter legem or infra legem36, for which no explicit consent by the parties is necessary. In this sense, Art. 38(2) is not conclusive in drawing a line between equity praeter legem on the one hand and equity contra legem on the other. Furthermore, no body of precedent is available for this as no case under the ICJ has been decided on the basis of the ex aequoet bono clause of Art. 38 (2).

37

Equity is also instrumental to interpretation of the applicable law to match the specific circumstances of the case – a role that is more easily accepted in international law. Equity fills in the gap where a margin of discretion is granted to the court of tribunal, by infusing reasonableness and individual adaptation of justice with the decision. This is known as equity infra legem, i.e. within the boundaries of the law.16Thus, the application of equity lays primarily to either correct the law or fill the legal vacuum in certain circumstances. Intergenerational Equity: Advocating the Use of Equity for Societal Harmony and Distributive Justice International law to date has addressed inter-temporal issues38 primarily in the context of relating the present to the past. In public international law, Judge Huber39 enunciated the inter-temporal doctrine in the classic Island of Palmas Arbitration, as having two elements: 34

Equity Contra legem.

35I. C. J. Statute, [Stature of the International Court of Justice] (1945). 36

Where the court is asked to adapt the laws to the facts of the individual case as quoted fromO‘BRIEN, JOHN, INTERNATIONAL LAW, 1st ed., Cavendish Publishing, 2001, p. 91. 37ShabtaiRosenne, The Position of the International Court of Justice on the Foundations of the Principle of Equity in International Law, FORTY YEARS INTERNATIONAL COURT OF JUSTICE: JURISDICTION, EQUITY AND EQUALITY, 1 (1988): 85-108 38

See generally D‘Amato, Anthony, International Law, Intertemporal Problems, ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW, 1994, p. 1234; BOCZEK, BOLESLAW, INTERNATIONAL LAW: A DICTIONARY, Scarecrow Press, 2005, p. 227. 39

Island of Palmas Arbitration, 2 R. Int'l Arb. Awards 831 (1928).


NILS Law Review

November, 2014

Vol. 1

that acts should be judged in light of the law at the time of their creation; and that rights acquired in a valid manner may be lost if not maintained in a manner consistent with the changes in international law.40. The ICJ recognized the ―concept‖ or ―principle‖ of intergenerational equity as a part of the international law matrix in Minquiers and Ecrehos Case41, The Western Sahara Case42, The North Sea Continental Shelf Cases, and the Aegean Sea Continental Shelf Case43along with the recent judgment regarding the legality of nuclear weapons.44 With the society‘s epiphany towards saving the resources for the future generation and to maintain a civilization without conflict, equity seems to be the adequate course of action for the future, relying on the conquests of good faith and fairness. As far as Darwin‘s45 philosophies go, the relevance of one‘s progeny remains a core evolutionary characteristic hard wired into both humans and non- human organisms. Strikingly, a broader concept of obligation towards future generations became a part of the world‘s ethical diaspora cascading into the legal floodgates. However, the incessantly incrementing poverty and the gapped divide between the rich and the poor have directed man‘s need to satisfy the immediate needs. But, Brown Weiss argued that the purpose of human society has to be to realize and protect the welfare and well-being of every generation,46 and very succinctly identified the problems with the intergenerational equity that we aim to achieve; namely, the depletion of resources for future generations, degradation of quality resources for future generations, and the problem of access to use and benefit from the resources received from past generations.47However, there are several loopholes that have been pointed out by scholarly 40

Brown Weiss, Intergenerational equity: a legal framework for global environmental change, WEISS, BROWN (ED.), ENVIRONMENTAL CHANGE AND INTERNATIONAL LAW: NEW CHALLENGES AND DIMENSIONS, United Nations University, 1992. Ch. XII, p. 2. 41

Minquiers and Ecrehos Case, 1953 I.C.J. Rep. 47

42

The Western Sahara Case, 1975 I.C.J. Rep. 39

43

Aegean Sea Continental Shelf Case, 1978 I.C.J. Rep. 1.

44

See,Legality of the Threat or Use of Nuclear Weapons Case, Advisory Opinion, [1996]

45

APPLEMAN, PHILIP (ED.), CHARLES DARWIN‘S THE ORIGIN OF SPECIES, Norton Press, 1975, p.50.

46

BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL LAW, COMMON PATRIMONY, AND INTERGENERATIONAL EQUITY (Tokyo: United Nations University), 1989. p. 23. 47

Id at p. 6


NILS Law Review

November, 2014

Vol. 1

opinions from the same field of ethics and law. Equity acts as the corrective tool which adapts, complements and amends the law, fostering the idea of intergenerational equity.48 But, it has been connoted that future generations are incapable of having rights49by virtue of their uncertain identity50and vagueness regarding their interests at the time.51It is also asserted that intergenerational equity ―undermines the importance of human dignity and the equal worth of all‖ because it treats the present generation as a mere means to the end of future generations‘ happiness.52 In essence, despite both sides to the argument, intergenerational equity has enforced the continuous use of equity resounding in the ICJ for the betterment of the society in the ends of equal justice and fairness to all. The Fading Relevance of Equity: A Critique “To introduce the Rule of Equity was like expounding a vague notion into the jurisprudence of the International Court: it would open the door to subjective and arbitrary evaluation.” -

Vice-President Koretsky (Separate Opinion), Netherlands v Denmark53

The authors of this paper put forth the contention that there are several dangers to the application of equity in the international law matrix. When a question arises as to the existence of equity as a source of international law; scholars like Akehurst54 are of the 48

See Principle 2, ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development, 2 April 2002; See alsoWEISS, E.B., supra note 49; See generally Redgwell, Catherine, Intergenerational Equity and Agenda 21, FOCUS ON POLICY, p. 13 as available on http://www.oekolog.at/fileadmin/umweltbildung/dokumente/grundlagen_nachhaltige_entw/Verantwortung_fuer _kommende_Generationen.pdf (Last visited on 13/9/14) 49

SeeWILFRED BECKERMAN & JOANNA PASEK, JUSTICE, POSTERITY, AND THE ENVIRONMENT, Oxford University Press, 2001. 50

Collins, Lynda M., Revisiting the Doctrine of Intergenerational Equity in Global Environmental Governance, 30.2 DALHOUSIE LAW JOURNAL, p.103. 51

See,Jeffrey M. Gaba, Environmental Ethics and Our Moral Relationship to Future Generations: Future Rights and Present Virtue, (1999) 24 COLUM. J. ENVTL. L. 249 52

Graham Mayeda, Where Should Johannesburg Take Us? Ethical and Legal Approaches to Sustainable Development in the Context of International Environmental Law, (2004) 15 COLO. J. INT‘L ENVTL. L. &POL‘Y 29, p.56. 53

Netherlands v Denmark, International Law Reports, Vol. 41, p.29.

54

SeeMALANCZUK, PETER, AKEHHURST‘S MODERN INTRODUCTION TO INTERNATIONAL LAW, p. 56.


NILS Law Review

November, 2014

Vol. 1

opinion that equity, at most, holds position as a low ranking source. However, the recurrent use of equity in international settlement and treaty interpretation highlights a tendency marking the inclusion of equity as part of applicable law and not merely as a separate system of concepts and principles. Thus, the authors contend that equity is a hostile mechanism of delivering justice and fairness, through 6 arguments. Firstly, in an international legal framework, there is a non- existence of compulsory judicial settlement which makes equity a prey to subjectivity. The idea of equity will vary according to the needs and cultures of the parties concerned. Every State will base its claims on considerations which it deems equitable for itself, but which will not serve equitably to its opponents, and hence disputes will only grow, not to mention become harder to settle. It was held in the Tunisia-Libya Continental Shelf Case55 that the circumstances of a case should serve as the considerations for the implementation of equity. Hence, even the finest of legal dissertations won‘t be able to succeed in completely eliminating what is perhaps an irreducible core of judicial subjectivism.56 It has well been noted that the moment the concept of equity is separated from international law, it will tend to drift towards elusive subjectivism with little room left for the necessary guarantee of objectivity and predictability of law. 57 And thus, the danger of over-conceptualization and crystallization of equity always lingers in the ever-evolving jurisprudence of international law. Secondly, the reason why equity seems desirable to judges and parties alike is that summoning equity strengthens a decision made on any other ground, especially decisions taken on narrow technical grounds. A decision based purely on technical legal grounds may be inconsistent with the ideals of justice and fairness. It is in this approach that the flexibility of the law, as discussed above in infra legem, praeter legem and contra legem equity, can be directed so as to assure a just conclusion. It is a known fact that equity buttresses legal arguments. Deployment of arguments dipped in equity have a prevailing effect in increasing the influence of arguments otherwise unlikely to succeed and unburdening the weight of technically powerful arguments which would lead to unjust adjudications. This, in the authors‘ perspective, is what is regarded as the primary function of equity. Moreover, legal 55

Separate Opinion, ICJ Reports (1982), 100, 106 ¶ 24.

56

Separate Opinions, Ruda J, Bejjaoui J, Arechaga J, Continental Shelf Case (Libyan Arab Jamahiriya/Malta) ICJ Rep 1985, p. 90 ¶ 37. 57

Tunisia-Libya Continental Shelf Case, Separate Opinion, ICJ Reports (1982), 100, 106 ¶ 24.


NILS Law Review

November, 2014

Vol. 1

argument constricts the issue and excludes irrelevant surrounding circumstances. The legal argument proceeds within the narrow framework of the written law, and delivers a judgment according to its standards of proof and procedural propriety.58 However equity does not narrow down the argument in the same way, hence switching the argument from law to equity broadens the scope of the enquiry, allowing the decision to be partly based on consideration of the surrounding circumstances. In today‘s scenario, it is often a matter of doubt and debate whether the application of equity must be in consonance with legal principles, whether it must supplement the law when it is inadequate or whether it should be rejected outright by mere logic. Thirdly, international equity, despite operating as secundum legem,praeter legem and intra legem; and as contra legem in certain circumstances,59 does not subjugate the law.60 The law prevails notwithstanding how rigid or obtuse. Thus, it only carves out an exception to the system. This is usually perceived as a general connotation; however, in the context of international law, where each matter holds as a unicum61, equity only holds as a distanced mechanism to justice which has to be backed upon as a dire measure, and not as a pillar of ubiquitous justice. It is only the gloss62 upon the rules and institutions of the traditional positive law, and nothing more. Equity provides exceptions to the general rules. Normally a deterrence factor against breaking international laws for a State is the fear of creating such precedent which may be used against them in the future. However, if an equitable exception to such rule is created, the concept of equity will veil such exceptions and as the jurisdiction of international tribunals is anyway non obligatory, they will have the added edge of not submitting to the optional jurisdiction. It is also an observation of the authors that for an international tribunal to base its decisions merely on equity is a dangerous proposition. Any judgment which seems equitable

58

Bartlett, Feminist Legal Methods (1990) 103 HAR.LAW REV.829, 831

59

ROSENNE, THE INTERNATIONAL COURT OF JUSTICE, 1961, p.421.

60

See generally Goldie, L.F.E., supra note 31.

61

Lee, Ki Beom, The Demise of Equitable Principles and the rise of relevant circumstances in Maritime Boundary Delimitation, Thesis for Ph.D., The University of Edinburgh, 2012, p.125as available onhttps://www.era.lib.ed.ac.uk/bitstream/1842/7576/2/Lee2012.pdf (Last visited on 15/9/14) 62

See generallyMAITLAND, EQUITY, 2nd ed., 1936.


NILS Law Review

November, 2014

Vol. 1

to the winning party will be deemed to be biased by the losing party who will be tempted to accuse the tribunal of acting ultra vires and lead to a refusal to execute the judgment. Fourthly, Equity is only suitable in contexts where there are competing interests and where the law is still in the developmental stages such as the concept of intergenerational equity, and of equitable principles in environmental law.63 The continental shelf delimitation cases pleaded before the International Court of Justice in the 1980s similarly reflect that there are few, if any, constraints upon the factors which may form the basis of an argument in equity. The judge making the decision is free from the obligation of making the reasoning consistent with established legal policy and principles. Even though the absence of a system of precedent from international law weakens that necessity, this freedom is a significant distinguishing characteristic as well as a major lacuna in the notions of equitable decision making. This reinforces another major reason for the inapplicability of equity which is the improbability of its applicability. The concepts on which equity is applied are continuously in a state of dynamic evolution and never remain static. Superimposing such a dense area of law over such fluid and variable subjects loses the purpose of intergenerational equity.64 Fifthly, the renowned scholar Oscar Schachter65 postulated five uses of equity, (iterated by Judge Weeramantry in his Separate Opinion of the 1993 Greenland/Jan Mayen case66), which are: ―1. Equity as a basis for ―individualized‖ justice tempering the rigours of strict law; 2. Equity as consideration of fairness, reasonableness and good faith; 3. Equity as a basis for certain specific principles of legal reasoning associated with fairness and reasonableness: to wit, estoppel, unjust enrichment and abuse of rights; 4. Equitable standards for the allocation and sharing of resources and benefits; [and]

63

Vaughan Lowe, The Role of Equity in International Law, AUSTRALIAN YEAR BOOK OF INTERNATIONAL LAW, p.54. 64

Tunisia/Libyan Arab Jamahiriya/Malta Case was decided before the Convention on the Law of the Sea, while Libyan Arab Jamahiriya Case was decided after the enforcement of the said convention. 65

OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND Practice (Dordrecht: Martinus Nijhoff Publishers, 1991), p.55-56. 66

Separate Opinion of Judge Weeramantry, I.C.J. Reports 1993, p.245, ¶ 110.


NILS Law Review

November, 2014

Vol. 1

5. Equity as a broad synonym for distributive justice used to justify demands for economic and social arrangements and redistribution of wealth.‖ This classification has been sought to be one of the primary arguments that the proponents of equity in the application of law use. However, the authors humbly submit that such classification is useless in law because equity must be preceded by the existence of the severity of strict law as international law does not accept the remedial role of equity,as has been highlighted in international cases.67 Sixthly, Judge Weeramantry68 said ―Equitable principles taken to include concepts, blackletter rules and principles in the broader sense and the term ―equitable principles‖ is to be read as covering all of these.‖ If equitable principles are understood as ‗all‘ concepts, blackletter rules and standards or principles in accordance with equity, the concept of equitable principles would mean nothing but justice, fairness or reasonableness in an abstract, broad sense. However, it has been admitted upon analysis of international case laws that equitable principles do not have their own content, but might rather be a process used for the application of equity. It thus follows that equitable principles, in themselves, cannot be ascertainable. Moreover, it is also evident that Judge Weeramantry failed to award an explanation of the relationship between equitable principles and relevant circumstances concerning a particular case.69 Thus, the unpredictability of judicial decisions will become a major reason for the States to show reluctance in accepting the jurisdiction of international tribunals, leading to decrease in the number of cases being submitted to the tribunals for adjudication. This is why such tribunals, in their judgments, refer to equity in correlation with a simultaneous invocation of the general rues of customary law, treaties or previous arbitral adjudications. Lastly, as Judge L. Dolliver M. Nelson, Former President of the United Nations Tribunal on the Law of the Sea, commented, the uniqueness of each case revolving around maritime boundary has rendered inadequate the application of a general or global rule such as the one embodied in the equitable principle of equidistance.70 This ‗infinite variety‘ of maritime 67

SeeContinental Shelf (Tunisia/Libya)case, I.C.J. Reports 1982, p.60,¶ 71.

68

Greenland/Jan Mayen case, I.C.J. Reports 1993, p.219, para.22.

69

See generallyKI BEOM LEE, supra note 62.

70

J I Charney, Book Review, (1995) 89 AMERICAN JOURNAL OF INTERNATIONAL LAW458, 459.


NILS Law Review

November, 2014

Vol. 1

boundary situations prevents the United Nations Conference on the Law of the Sea from producing any definitive rules on maritime boundary delimitation,71 thereby awarding such tribunals wide discretionary powers. To conclude, there is deep unease amongst scholars and jurists alike at the unbridled discretion reposed in judges through which they are permitted to have recourse to the open ended concept of equity.

71

See Justice Margaret White, Equity – A General Principle Of Law Recognised By Civilised Nations?4.1 QUTLJJ 2003, (W A Lee Equity Lecture).


NILS Law Review

November, 2014

Vol. 1

Child Soldiers in Terrorist Outfits: Combating the Collateral Damage to Civil Society in a War of Ideology Anand Swaroop Das and Poonam Motwani1

Introduction “The recoil of every bullet fired chips away a little bit of innocence, a little bit of humanity from the marble slab that is life, solemn bequeathing us with the fiendish statute of a lost childhood.� -

Anonymous

The concept of War has always formed one of the dreariest existential realities that humankind has daubed itself with even before discovering civilized life. The thrust of adrenaline and the glorification found by acquiring trophies glazed with blood, metaphorized

themselves as

building monuments of primal gratification for some, while the rubble of countless demolished lives were swept into dark corners, leaving ephemeral specks of dust in the air, which soon disappeared without a trace, as if they never did exist. The effects of terrorism replicate these results, for terrorism whether Military, Revolutionary or State Sponsored is but a War of Ideology. Moreover, its nature caters to the immutable principles of warfare, the difference of classification manifesting itself only as a terminology of the allegiance or opposition. Interestingly, the distinction between the Angel and Satan in a battlefield only denotes on which side of the line one is, the distinction between soldier and terrorist a sheer perspective, thus giving rise to the famous quote 'one person's terrorist is another person's freedom fighter'2. Thus, rife with terminological confusion Terrorism manifests itself as a species of 'psychological warfare'3.

1

Students of III year, B.A.LL.B, National Law University Odisha. The authors can be reached at anandswaroopdas@gmail.com and motwanipm247@gmail.com respectively. 2

Emily Camins, War Against Terrorism: Fighting the Military Battle, Losing the Psychological War, 15 CURRENT ISSUES CRIM. JUST. 95, 96(2003) 3

Id. at 97.


NILS Law Review

November, 2014

Vol. 1

The contractors of the war that is ‗Terrorism‘ can also be accused of sweeping more diabolical rubble into the vast pile already accumulated - A mass of children recruited, trained and indoctrinated into moral disengagement4 to meet their needs. A caricature of a Lissome child, often wearing clothes that depict his ethnic culture yet holding weaponry in his tiny hands and having grenades and dynamites in his pockets has been burnished in our minds5 and this imagery is firmly embedded in reality. An increasing number of Children in the affected areas find ―Affiliated to a terrorist organization‖ slapped on their Curriculum Vitae every day. Be it youngsters trained by Palestinians6, or the 5 year olds being brain-washed to follow the path of Jihad by the Al-Qaeda7, or the videos depicting youngsters in Pakistan, decked in their salwaarkameez practicing their aim8, or the plight of Afghanistani Suicide-Bombers who are too young to understand what the term even means9, the media nowadays is ubiquitous in presenting their struggle through life. However, what remains to be understood is that these Child Terrorists are nothing but the offshoots of civil society, lead astray to torment the civilians themselves. The physical and psychological violence committed on them leads them to a path which bans all emancipation. Not only are they persecuted but also denied asylum10 even after the existence of treaties like The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict ("Optional Protocol") by 44 States. The famous case of Omar 4

5

War Against Terrorism, supra note 2, at 98. DAVID M. ROSEN, ARMIES OF THE YOUNG: CHILD SOLDIERS IN WAR AND TERRORISM 1(2005).

6

THE EXPLOITATION OF CHILDREN FOR TERRORIST PURPOSES, available athttp://likud.nl/2003/01/the-exploitationof-children-for-terrorist-purposes/ (last visited Jan,14, 2014). 7

SAM WEBB, THE FIVE-YEAR-OLD TERRORISTS: YOUNGSTERS TRAINED TO KILL WITH PISTOLS AND ASSAULT RIFLES IN SHOCKING PICTURES FROM AL QAEDA'S HEARTLAND (Nov. 18, 2012) available athttp://likud.nl/2003/01/theexploitation-of-children-for-terrorist-purposes/ (last visited Jan. 30, 2014). 8

KIDS FILMED FIRING HEAVY ARSENAL AT TYKE TERROR TRAINING CAMP IN PAKISTAN (April 23, 2013)available athttp://rt.com/news/children-terrorist-camp-pakistan-279/ (last visited Jan. 31, 2014). 9

AFGHAN BOY SUICIDE BOMBERS TELL HOW THEY ARE BRAINWASHED INTO BELIEVING THEY WILL SURVIVE (Jan. 312014) available athttp://www.telegraph.co.uk/news/worldnews/asia/afghanistan/9014282/Afghan-boy-suicidebombers-tell-how-they-are-brainwashed-into-believing-they-will-survive.html (last visited Jan 28, 2014). 10

Dani Cepernich, FightingFor Asylum: A Statutory Exception To Relevant Bars For Former Child Soldiers 83 S. CAL. L. REV. 1099, 1100( 2009).


NILS Law Review

November, 2014

Vol. 1

Ahmed Khadr11, who is facing a trial for war crimes committed at the age of fifteen shows that to pursue counter-terrorism and show strict vehemence for such acts at an international platform, one of the Super-powers (U.S.A.) is even willing to let go of its obligations of rehabilitating and reintegrating child soldiers12. Thus, wading through the course of this paper in order to determine the complexities and the ramifications of such travesty on the affected youngster, civil societies and the position of Human Rights as such, we first need to delve into the Historical facts of the usage of Child Soldiers in Counter-Terrorism. Military Use of Children: History and Development The deployment of young, docile and impressionable children as pawns isn‘t a novelty introduced by modern Terrorism, but is as old as the art of war itself. Almost all cultures around the world have at some point or the other defiled the childhood of many, implanting the excuse of necessity to traverse social morals and laws alike. A Child Soldier, defined as ―Anyone under the age of eighteen who is engaged in deadly combat or combat support, through either direct combat or work behind front lines‖13, owing to the worldwide acceptance of this lower age limit14 for an individual to enter into military service15, presents himself as ideal in many ways and hence their deliberate recruitment has increased manifold. Though history remains tainted with qualms of trading these innocent souls for objectives sought to be achieved by force, the initial records of recruiting and using children on battle lines can be traced back to the Crusades in 1212. The sacrilege of using children in warfare extends to many

11

United States v. Omar Ahmed Khadr, (Military Comm'n, referred Apr. 24, 2004), available at http://www.defenselink.mil/news/commissions (last visited Jan. 28, 2014). 12

International Law And Laws Of War And International Criminal Law - Prosecution Of Child Soldiers - United States V. Omar Ahmed Khad 33 SUFFOLK TRANSNAT'L L. REV. 175, 176( 2010). 13

Naomi Cahn, Poor Children: Child "Witches" and ChildSoldiers in Sub-Saharan Africa, 3 OHIO ST. J. CRIM. L. 413, 421 (2006). 14

15

P.W. SINGER, CHILDREN AT WAR 3 7(2005). Id. At 8.


NILS Law Review

November, 2014

Vol. 1

famous contingents like the Orphans of the Imperial Guard16, The infants of the Emperor17 and ranged to be gunned down in famous battles like Waterloo and Antietam18. The employment of children in Military rose exponentially in the World Wars to fill up the rapidly depleting ranks. The propaganda and the glorification impacted their minds which had not yet learned to develop filters so much that children as young as age 12 joined the army19. Moreover, in the Third Reich, Jewish resistance consisted of ample child soldiers for the Nazi Germany to brand them as ―Terrorists‖20. Sacramental years of childhood have further been sacrificed by the resistance groups during the Cambodian Genocide21, the Revolutionary United Front (RUF) in Sierra Leone22, and the People's National Resistance Army in Uganda23. The countries faced with political instability aside, countries flagging themselves as super-powers and raging on Human Rights and Signatories to the Optional Protocol deployed soldiers under eighteen to combat arenas in Iraq24 quoting ―Genuine and Pressing Military Needs‖25 as a defence for the same.

16

MICHAEL LEGGIERE, THE FALL OF NAPOLEON: THE ALLIED INVASION OF FRANCE 99(1814).

17

STEPHEN POPE, DICTIONARY OF THE NAPOLEONIC Wars, 318(1920).

18

Supra note 15, at 13.

19

WENZEL, MARIAN; CORNISH, JOHN (1980). AUNTIE MABEL'S WAR: AN ACCOUNT OF HER PART IN THE HOSTILITIES of 1914-18. 112(1914). 20

DAVID ROSEN "CHILD SOLDIERS: VICTIMS OR HEROES?" (2005). http://www.fdu.edu/newspubs/magazine/05sf/childsoldiers.html (last visited Jan. 25, 2014). 21

MIRANDA LEITSINGER, FORMER CHILD SOLDIER UNDOES PAST, ONE LANDMINE AT A TIMEFORMER CHILD SOLDIER UNDOES PAST, ONE LANDMINE AT A TIMENovember 10, 2009 http://edition.cnn.com/2009/WORLD/asiapcf/10/28/cambodia.landmines/index.html?iref=mpstoryview (last visited Jan. 25, 2014). 22

Larence Roy-Macauley special Court Convicts 3 of Sierra Leone War Crimes June 21, 2007http://www.washingtonpost.com/wpdyn/content/article/2007/06/20/AR2007062000952.html?hpid=moreheadli nes(last visited Jan. 25, 2014). 23

MINDY KAY BRICKER , Girl soldiers – the cost of survival in Northern Uganda January 31, 2014http://womennewsnetwork.net/2009/01/13/ugandagirlsoldier809/(last visited Jan. 25, 2014). 24

Under-18s Were Deployed to Iraq, B.B.C. NEWS, Feb. 4, 2007, http://news.bbc.co.uk/2/hi/6328771.stm

25

Jo Becker, Children as Weapons of War, in HUMAN RIGHTS WATCH,

WORLD REPORT 2004 (2004), available at http://www/hrw.org/en/news/2004/01/25/children-weapons-war(last visited Jan. 25, 2014).


NILS Law Review

November, 2014

Vol. 1

It is hence, not a flash of genius that the Terrorist Organizations saw these young minds and bodies as favourable tools of multiple and flexible usage ranging from fighters, spies, sexual slaves and even suicide bombers26. The gifting of weapons and dynamites instead of toys and sports equipment seems to be in vogue in certain parts of the world in this decade. The Liberian opposition groups and government forces used approximately 15,000 child soldiers27, during which they suffered unspeakable atrocities. Additionally, in Nepal, many children are affiliated to the Maoists28 and even LTTE used youngsters for battlefield and guerrilla warfare29. However, in order to affirmatively determine the causes of why employing children as terrorists has been the order of the day in Militant Organizations, one has to cross the intricate maze of factors proving their favourability for such work. This in particular shall be dealt with in the next chapter. Child Soldiers In Terrorist Camps: Why Do They Join And What Do They Do? Children join military and terrorist groups for a variety of reasons. At times, there are voluntary recruitments and on other occasions, there is forceful recruitment. However, statistics tell us that voluntary recruitment is more than forceful hiring.30This however, does not in any way minimize the significance of the latter as a pertinent issue. A child soldier in the Democratic Republic of Congo cited that the reason for his joining the militia was out of fear of death 31. Another girlchild from Sri-Lanka, who was recruited by the LTTE, was dragged out of her house to join the

26

TRACEY B. C. BEGLEY, THE EXTRATERRITORIAL OBLIGATION TO PREVENT THE USE OF CHILD SOLDIERS, 27 Am. U. Int'l L. Rev. 613 2011-2012 615 27

HUMAN RIGHTS WATCH, HOW TO FIGHT, HOW TO KILL: CHILD SOLDIERS IN LIBERIA 1 (2004).

28

HUMAN RIGHTS WATCH, BETWEEN A ROCK AND A HARD PLACE: CIVLIANS STRUGGLE TO SURVIVE IN NEPAL'S CIVIL WAR 60-61 (2004). 29

HUMAN RIGHTS WATCH, LIVING IN FEAR: CHILD SOLDIERS AND THE TAMIL TIGERS IN SRI LANKA 2 (2004). 30

COALITION TO STOP THE USE OF CHILD SOLDIERS. WHY CHILDREN JOIN? available at http://www.childsoldiers.org/child-soldiers/why-children-join (last visited Jan. 25, 2014). 31

COALITION TO STOP THE USE OF CHILD SOLDIERS, VOICES OF YOUNG SOLDIERS, available athttp://www.childsoldiers.org/child-soldiers/voices-of-young-soldiers (last visited Jan. 25, 2014).


NILS Law Review

November, 2014

Vol. 1

terrorist group. The Naxalites in India also recruit children into their groups forcibly32. Forced coercion has also been demonstrated by Al-Shabab, a subsidiary terrorist link of Al-Qaeda operating in Somalia. This organization, forcefully takes away children from their homes, abducts them from schools by enticing them with goodies or gets them to join their organization in return for bringing them out of poverty. In northern Mali, for example, Ansar Dine, the Movement for Unity and Jihad in West Africa, and al-Qaeda in the Islamic Maghreb have paid over 1,000 children up to $30 a day and $400 a month to join their forces33. Sometimes, joining the terrorist groups or militia leaders remains the only hope for survival as the economic, social and familial structures of such children are periodically ravaged by armed conflicts34. From a different perspective, becoming a fighter may be an attractive possibility for children and adolescents facing poverty, starvation, unemployment, and ethnic or political persecution35. Many children have also shockingly cited their reason to join terrorist organizations as a means to avenge the killing of relatives. Poverty and lack of access to educational or work opportunities are additional factors- with joining up often holding out either the promise or the reality of an income or a means of getting one36. However, it is very pertinent to note that brainwashing and conditioning a child is not much of a job. This facilitates in the recruitment process. The children in terrorist camps are not much of a hassle as they eat less, they are happy with whatever they get paid and pose little or no danger whatsoever. Psychological studies have shown that children also join such organizations for social status, ideological commitment, recognition and power. The family and peer pressure to join up for ideological or traditional family reasons, in some cases, have also been motivating factors 37. Girl 32

INDIA: CHILD SOLDIERS BEING USED AS EXPENDABLE PAWNS IN ARMED CONFLICTS, Asian Human Rights Commission, (2007) available athttp://www.humanrights.asia/news/alrc-news/human-rights-council/hrc6/AL-0242007 (last visited Jan. 25, 2014). 33

Frank Crimi, AL-QAEDA‘S CHILD SOLDIERS, (2012) available at http://www.frontpagemag.com/2012/frankcrimi/al-qaedas-child-soldiers/ (last visited Jan. 25, 2014). 34

Supra note 30.

35

International Labor Organization, 2003.

36

Supra note 30.

37

Supra note 30.


NILS Law Review

November, 2014

Vol. 1

soldiers have reported joining up to escape domestic servitude or enforced marriage or get away from domestic violence, exploitation and abuse38. A few children have also mentioned ‗thrill‘ as a reason for joining terrorist groups and military camps39. To further understand the reasons as to why children become a part of such groups, it is very essential to understand the reasons why such groups recruit children in the first place and what roles the children are given. On account of their expendability and size, children are sent to battle or armed conflicts as decoys or as the first ones in line when the enemies draw fire. Others are used as spies, messengers, porters, servants or to lay landmines, or as human bombs40. Certain terrorist groups use girl children in their camps so as to camouflage them as normal villages when the authorities inquire. Since children are trusted in financial matters, they are usually the ones sent for extortions. In combat, children can be daring and tenacious, particularly when under the influence of drugs—a common practice—or when compelled by political or religious zeal41. AlQaeda, one of the most notorious terrorist organizations operating in the world, recently released a video showing young boys as small as 5 years, training with handguns and assault rifles at a camp where such children are taught to practice jihad 42. Since weapons in armed conflicts nowadays are automatic and light, children are given the same to handle. The child soldiers live a life of great peril. Recruitment is only the beginning of the horrors which follow such children. Children face blatant human rights violations in terrorist camps and organizations and the impact of the same affects them in the worst possible way.

38

Supra note 30.

39

CHILD-SOLDIERS OF THE LTTE,available athttp://www.satp.org/satporgtp/countries/shrilanka/terroristoutfits/child_solders.htm (last visited Jan. 25, 2014). 40

CHILDREN AND HUMAN RIGHTS, Amnesty International, available athttp://www.amnesty.org/en/children (last visited Jan. 25, 2014). 41

CHILD SOLDIERS AROUND THE WORLD, available athttp://www.cfr.org/human-rights/child-soldiers-aroundworld/p9331(last visited Jan. 25, 2014). 42

See Frank Crimi, Supra note 33.


NILS Law Review

November, 2014

Vol. 1

Blatant Violation of Human Rights of Children INHUMANE TREATMENT OF CHILD SOLDIERS IN TERRORIST CAMPS Child soldiers in terrorist camps live a life of misery and apathy. They are ill-treated and are forced to contribute in the torture of their own relatives, in cases of forceful recruitment. This makes the children totally dependent on the armed group they are joining and reduces chances of escape43. There are even terrorist groups which make children kill their friends, to see if they can be trusted. Children are mistreated, subjected to inhumane physical and psychological agony, are deprived of their childhood, made to live in filthy and unhygienic conditions, are beaten up at times and not provided with proper health care and nutrition. Certain child soldiers are also made to consume drugs and other intoxicants44. Girl children, besides facing other numerous problems, are often subjected to the heinous crimes of sexual abuse and rape. Basically, in most of the terrorist camps, the girls have the job of being sexual slaves. Amnesty International has mentioned in its studies that girl soldiers account for about one-third of the child soldiers all over the world. And if some children attempt to escape, they are faced with fatal consequences. As per the martial law in Sudan, children in the army can be executed. Terrorist groups like the Taliban, the Al-Qaeda, and their other allies, use child combatants in the most ruthless ways one can think of. Such children are forcefully indoctrinated and among other training, children are used as suicide bombers45. Al-Qaeda and the Taliban have constructed and operated a slew of suicide training facilities in Afghanistan and Pakistan, death factories that have trained over 5,000 Pakistani children, many as young as eight, as suicide bombers46. Such juvenile child bombers are manipulated into believing that great rewards follow on the performance of such deadly deeds.

43

Barbara Fontana, Child Soldiers and International Law, 6(3) AFRICAN SECURITY REVIEW, (1997).

44

Supra note 31.

45

See Frank Crimi, Supra note 33.

46

Ibid.


NILS Law Review

November, 2014

Vol. 1

Physical and Mental Impact of Terrorism on the Child Terrorist activities and other armed conflicts give a death blow to the mental and physical faculties of the child. While in camps, children witness and also sometimes commit heinous offences like beheadings, bombarding, rapes, amputations etc. After they leave the place, they are plagued with numerous mental health problems directly associated with their involvement in such activities. The derivative effects of exposure to war-related stress on the developing child are far-ranging and affect the elaboration and consolidation of personality structures, identity formation, adaptive and coping mechanisms, internalized standards of right and wrong, intrinsic mechanisms for modulating aggressive impulses, the habitual mode of relating to others in addition to having enduring neurobiological consequences47. Post-traumatic stress behaviour like depression, substance abuse, psychological distress, sleeping problems, anxiety, recklessness, defiance or suicidal tendencies are also seen in such children. This psychological trauma also affects the physical health of such children. Child soldiers report high rates of physical illness, poor immune system, somatic pain, susceptibility to infectious diseases, abnormalities in thyroid, increased risk of HIV, cancer, chronic pain etc 48. Surviving traumatic experiences might be followed by social withdrawal, loss of trust, major changes in patterns of behaviour or ideological interpretations of the world, and feelings of guilt and shame49. Other impacts of terrorism and war on children are manifested in the form of drug abuse, dissociation and de-realization, anti-social behaviour, cognitive and educational impairment and social stigma. Substance and drug abuse has been seen as a way to escape unemployment, poverty and trauma by child soldiers. In some shocking findings by researchers, it was seen that suicides in children who were part of terrorist camps have increased

47

Anirudh Purwar, Arnab Dhabal, Diptarka Chakravarty, Psychological Effects of War and Terrorism on Children, (2014) available at http://www.astro.umd.edu/…/Psychological%20Effects%20of%20War%20and%20Terrorism%20on%20Children.p df. 48

Amone, K. P‘Olak, Coping with Life in Rebel Captivity and the Challenge of Reintegrating

Formerly Abducted Boys in Northern Uganda. 20(4) J. REFUGEE STUD, (2007) 641–661. 49

J. Dickson, Gomez, The Sound Of Barking Dogs: Violence And Terror Among Salvadoran Families In The Postwar, 16(4) MED ANTHROPOL Q., (2002) 415–438.


NILS Law Review

November, 2014

Vol. 1

phenomenally over the years50. If confronted, more anxious children can quickly escalate to feeling threatened, ‗frozen,‘ and ultimately resort to a classic fight or flight response by becoming aggressive or combative over relatively minor events51. Post-war and terrorist activity scenarios usually affect the child soldiers in a way that their IQ gets low, they lack capacity to reason, there is recurring trauma which affects concentration etc. Without education, most of the children have little or no future prospects and sometimes return to the same activities for a livelihood. International Law and Conventions: Effective or Drastically Insufficient? Considering the gravity of the issue, International Law making bodies and the United Nations have passed a number of resolutions and protocols relating to the same. But how far they have addressed the issue is still a matter of utmost concern. The United Nations Convention on the Rights of the Child proclaims that ―State parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities.‖52 However, it allows for juveniles between the ages of 15 and 18 to take part voluntarily. Under the Rome Statute of the International Criminal Court, ―Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities‖ is a war crime 53. The United Nations Security Council also passed a number of resolutions in this regard under the heading, ‗Children in Armed Conflict.‘ The first resolution on the issue was passed in 199954. Another such resolution was 50

H. Hendin, A. P. Haas, Suicide And Guilt As Manifestations Of PTSD In Vietnam Combat

Veterans, 148(5) AM J PSYCHIATRY, (1991) 586–591. 51

P. T. Joshi, D. A. O‘Donnell, Consequences Of Child Exposure To War And Terrorism,

6(4) CLIN CHILD FAM PSYCH, (2003) 275–292. 52

OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE INVOLVEMENT OF CHILDREN IN ARMED CONFLICT, United Nations Human Rights, available athttp://www.ohchr.org/EN/ProfessionalInterest/Pages/OPACCRC.aspx(last visited Jan. 25, 2014). 53

COALITION TO STOP THE USE OF CHILD SOLDIERS, International Standards, available at http://www.childsoldiers.org/international_standards.php (last visited Jan. 25, 2014). 54

SECURITY COUNCIL MEETING 5936, available at http://www.securitycouncilreport.org/undocuments/document/CAC%20SPV%205936.php (last visited Jan. 25, 2014).


NILS Law Review

November, 2014

Vol. 1

passed in 2005, wherein the Security Council deliberated on an action plan for monitoring and reporting the issue without delay55. The International Labour Organization condemns all forms of slavery or practices similar to slavery, which includes forced or compulsory recruitment of children for use in armed conflict. Even the United Nations Conventions on the Rights of Child56 and the Additional Protocols to the Four Geneva Conventions of 1949 also set the minimum age for recruitment of children in armed conflicts at 18 and not any age below that. The African Charter on the Rights and Welfare of the Child, which is the only regional treaty in the world to address the issue of child soldiers, states that, ―State Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child.‖57 The major shortcoming of international law is that it insufficiently addresses the current terrorist activities and armed conflicts. The biggest drawback of the law and the various protocols is the absence of the terms ‗terrorists‘, ‗terrorist activities‘, ‗terrorist organizations‘, ‗children involved in terrorist activities‘ etc. A pertinent example of this is Protocol II wherein, it is mentioned that the same applies to armed conflicts (internal) of a very high intensity. There is also a dire need to establish a world body in international humanitarian law to ensure that humanitarian norms are not violated during such conflicts58. Even the humanitarian laws need an overhaul owing to the changing times and the nature of present-day conflicts. The jurisdiction of the International Criminal Court is also not accepted by a majority of the countries. The main lacuna of UNCRC is the non-binding nature of its obligations with non-government agencies.

55

UNITED NATIONS SECURITY COUNCIL RESOLUTION 1261, available at http://daccessods.un.org/TMP/5539388.06056976.html (last visited Jan. 25, 2014). 56

The United Nations Convention on Rights of Child, Art. 38(2).

57

The African Charter in the Rights and Welfare of the Child, Art. 22(2).

58

Supra note 42.


NILS Law Review

November, 2014

Vol. 1

Recommendations and Conclusion "It is immoral that adults should want children to fight their wars for them .... There is simply no excuse, no acceptable argument for arming children."59 -

Archbishop Tutu

The depiction of the brain-washing and drug abuse of Vandy‘s son Dia in the Political War Thriller ―Blood Diamond‖ based In Sierra Leone surpasses a proverbial situation of bone chills. However, Situations like these that haunt adults are the reality of some children‘s lives. Many have been kidnapped, sexually abused, forced to fight and thrown into drug habits and the loss is a loss for the generation as a whole. The child, even after the ordeal is over, is left rummaging for his/her innocence and vigour. A child once wrapped in the cloak of violence becomes insensitive to the world and it is a fight in itself to restore them to normalcy. The self-centred attitude of the Governments which mostly had a hand in the glove with these organizations at some point of time leads to the diminution of the civil society itself. Thus, it is most pertinent that effective and stringent measures be taken in order to protect the interest of civil society by means of sensitized counter-terrorism. Some measures for the same are: a) Most of the voluntary enrolment in such terrorist groups is due to the hype and glorification that comes to the forefront. There needs to be a base policy that becomes the anti-thesis of such propaganda. b) The various ―optional protocols‖ should be applied stringently on signatories and no defence clauses should be available for the same. c) The militant groups employing children in any manner should not be given the benefit of the Geneva Convention to incentivize their non-deployment. d) An umbrella organization targeted at rescuing child soldiers in militant groups should be formed and be given sufficient autonomy

59

The Children and Armed Conflict Unit, Themes: Child Soldiers, http://www.essex.ac.uk/armedcon/themes/childsoldiers/index.html (last visited Apr. 13, 2008)


NILS Law Review

November, 2014

Vol. 1

e) Once rescued, the aim should be on rehabilitation and reintegration by means of education and support groups instead of persecution. f) Most of these children have been subjected to some kind of abuse, be it physical, drug or sexual and hence separate clinics should be set up to promote speedy recovery. Moreover, what one needs to understand and be sensitive about is that when these tiny hands hold a gun, a fraction of hope is withered and a childhood is lost.


NILS Law Review

November, 2014

Vol. 1

Apathy towards Gender and Human Rights Violations across International Boundaries Fazal Ali Ahmad1

Introduction Since the advent of civilization, man –the ‗hunter‘ has been acknowledged as physically superior to a woman. On the other hand, with procreation being an important role adorned by woman, she – the ‗gatherer‘, has evolved as emotionally stronger than man. This legacy has prevailed over the ages, and history of all religions and ethos has embraced the same. It has taken centuries for women emancipation and gender parity to come into play. In the past there were few women like Razia Sultan, Jhansi ki Rani, Sarojini Naidu, Sunita Williams etc. standing up for their rights. Conversely, today we have a large number of strong women champions, who are high achievers winning accolades and leaving indelible mark of brilliance. Women have themselves etched a working role for their inclusive growth. Today, women are distinct in their contribution to the society with remarkable capability to multitask. In this dynamic age, when gender equality is in the foreplay, equal opportunities are being thrown open to all. Laws are mushrooming to protect women‘s rights, and committees and covenants are being formed on an international basis to empower women from all regions. The Convention on the Elimination of Discrimination against Women (CEDAW) and the Universal Declaration of Human Right are few such international organisations. More importantly, the patriarchal and feudalistic mindset is gradually loosening its grip over women. In this era, we find a concerted effort being made towards bringing women from hedged communities into the mainstream. Financial independence and development has given women an invaluable dignity and worth in society. However, in many societies modernism goes hand in hand with traditionalism. One‘s faith roots him to a world which gives solace to restless beings. People pray independently, as well as, en 1

Student of IV Year, B.A.LL.B., Amity Law School, Delhi (Affiliated to Guru Gobind Singh Indraprastha University). Author can be reached at fazal12@gmail.com.


NILS Law Review

November, 2014

Vol. 1

mass to reinforce their beliefs and commitments to their faith. Circumstances permitting, many undertake pilgrimage to pay tribute to their deities and for the cathartic experience which helps them to grow into better human beings. From Hindus visiting Vaishno Devi to Muslims travelling for Haj to Mecca, all devout yearnsto complete their pilgrimage. Haj: A Pilgrimage to Mecca ISLAM: AN OVERVIEW The believers of Islam follow its 5 tenets,2 also known as 5 pillars of Islam, which make up Muslim life, prayer, concern for the needy, self purification and the pilgrimage. They are Shahadah which means Faith in Islam; Salat which includes prayers, five times a day; Sawm which includes fasting and self-control during Ramadan; Zakat which involves giving to the poor and needy and Haj which is the pilgrimage to Mecca. While the first 4 pillars entail individual responsibility, the 5th pillar – Haj takes the Muslim to one of the largest congregation of the world at Mecca. The Haj pilgrimage dates back to preIslamic era as it constituted a significant difference to the local economy. With the advent of Islam, Haj became a duty for all who fulfilled the conditions, had the means and health. Amribn al-Aas narrated that the Holy Prophet said: ―Haj wipes out whatever (sins) came before it.‖3 HAJ PILGRIMAGE The Muslim world's leading multinational organization, the Organization of the Islamic conference, has established the first international regime explicitly devoted to pilgrimage. Every large Muslim nation has developed a comprehensive Haj policy and a powerful bureaucracy to enforce it. Yet no authority–secular or religious, national or international–can really control the Haj. Pilgrims believe that they are entitled to travel freely to Mecca as "guests of God"–not as guests of any nation or organization that might wish to restrict or profit from their efforts to fulfil

2

The Oxford Dictionary of Islam,Pillars of Islam; OXFORD ISLAMIC STUDIES ONLINE <http://www.oxfordislamicstudies.com/article/opr/t125/e1859?_hi=17&_pos=3> accessed 1 July 2014 3

Narrated by Muslim 121 [Hadith]


NILS Law Review

November, 2014

Vol. 1

a fundamental religious obligation.4Faith bestows equal access to men and women in terms of their religious duties and rights. Just like Muslim men, Muslim women are also expected to perform Haj if they have no liability and are physically and financially able. However, a woman must go for Haj with her husband or a Dhu-Mahram - the one that a woman can never marry due to close relationship. THE REQUIREMENT OF MAHRAM The Shafi'iyyah states that Haj is not obligatory upon a woman until she finds a male Mahram relative or a husband or a group of trusted women. If she finds any one of the three, it is obligatory upon her to perform Haj. However, the Shafi'iyyah holds a womanâ&#x20AC;&#x2DC;s security as a matter of primary concern while she undertakes the journey to perform Haj. This security can be found when a husband or a Mahram or a group of trusted women accompanies her. For those who cannot fulfill any of the conditions, Ibn Abbas, the Holy Prophetâ&#x20AC;&#x2DC;s paternal cousin said that he heard the Prophet say that a man cannot be alone with a woman unless she is in the company of a Dhu Mahram. It is compulsory for a husband to give up any other expeditions in order to accompany his wife in performing Haj. However, Imam As-Shafi as well as some other scholars consider a good group of pious, reliable and trustworthy women to be an alternative, but only in the obligatory Haj and Umrah, not the supererogatory ones.5 In the popular opinion of the Madhhab, it is permissible for a woman to perform Haj even if she finds only one trusted woman to accompany her. More so, they say it is permissible for her to travel alone if she feels safe and fears nothing on the road. This understanding is contrary to the Hadith which forbids a woman from traveling alone for Haj. Only the obligatory Haj can be performed without a Mahram and for the voluntary one, she is not permitted to travel alone.

4

Robert R. Bianchi, The West Is Not Alone: The Hajj in World Politics and Law in GUESTS OF GOD: PILGRIMAGE AND POLITICS IN THE ISLAMIC WORLD [2004] 5

Mona Ways, Conditions of Hajj, HAJ NOW <http://www.hajjnow.com/book/conditions.shtml> accessed 1 July 2014


NILS Law Review

November, 2014

Vol. 1

CHALLENGES Haj is a unique act of worship that is tied to a specific time, set, sequence of rituals and a specific physical geography which is harsh, rocky and mountainous desert. More than 3 million Muslims from more than 183 countries perform Haj each year.6All sectors involved in the organization, including civil defense and hospitals, work round-the-clock to ensure completion of all the preparations and security and safety of the pilgrims. Today the large number of Hajjis brings with them different kind of man-created logistic challenges. Large crowds have to be provided with food, shelter, sanitation, and emergency services. Unfortunately, these city officials have not always been able to prevent disasters. Besides deaths by stampedes, there have been fatalities because of fire outbreak, protests, epidemic, respiratory infection, heart failure, heat and exhaustion. All this makes the fragility of women more vulnerable and the need for an accompanying Mahram a must. STATISTICS Despite the best arrangements extended by the Saudi government (who have last year installed 1700 CCTV cameras to monitor the movement of pilgrims), the sheer number of pilgrims makes the holy site vulnerable to stampede and crowd turbulences. In 1997, open stoves set tents on fire, and the resulting blaze killed 343 pilgrims and injured more than 1,500. In 2004, 251 pilgrims were killed and another 244 injured during a stampede. In 2006, another stampede killed 345 pilgrims and injured 600. In the worst Haj-related disaster, 1,426 people died in 1990 during a stampede in a tunnel leading to Mecca's Grand Mosque.7

6

Information Office of the Royal Embassy of Saudi Arabia in Washington, DC,3,161,573 pilgrims perform Hajj this year;(Oct. 27,2012) <http://www.saudiembassy.net/latest_news/news10271201.aspx> accessed 1 July 2014 7

Al Jazeera, Hajj: Major incidents- A timeline of major incidents during the Hajj pilgrimage in Saudi Arabia < http://www.aljazeera.com/news/middleeast/2007/12/2008525172542227691.html> accessed 1 July 2014


NILS Law Review

November, 2014

Vol. 1

In response, the Saudi government has further worked on improving the environmental conditions. They remain committed to mitigate health risks during Haj, and have spent more than $25 billion to date, in efforts to prevent stampedes.8 However, a woman‘s safety cannot be cited as a reason for continuing with the practice of Mahram. The victim, in case of any unfortunate eventuality could be either a man or a woman. For women, who are not able to get a Mahram for Haj, provisions could be created for them to travel together in a group. Zeenat Shaukat Ali, an Islamic scholar, has another suggestion –` appointment of female Haj guides or muallims could also help in allowing women – bereft of Mahram, to perform Haj within the sanctity of Islam.9 With changing times and acceptance of gender equality, deliberations are arising around the limits to which a Muslim woman can perform Haj alone. Aminakutty v Haj Committee of India THE CASE The controversy arose in India with the appeal to the Kerala High Court in the case of Aminakutty v. Haj Committee of India.10Aminakutty, a 64 year old Muslim woman triggered widespread debate throughout the country. Kerala is a state where Muslims form nearly a quarter of the state‘s 33.4 million population. The Muslim growth rate in Kerala substantially exceeds that of Muslims nationally11and the state leads India on gender-specific development indicators, including female education.12

8

Office of the Associate Director for Communication, Division of News and Electronic Media, Centre for Disease Control and Prevention, Hajj and Umrah, 2013 <http://www.cdc.gov/features/hajjandumrah/> accessed 1 July 2014 9

SonalNerurkar ,No male escort, no Haj, Times of India Apr 7,2013

10

2013 (3) KLT 684

11

THOMAS JOHNSON NOSSITER, COMMUNISM IN KERALA: A STUDY IN POLITICAL ADAPTATION (note 19 page 40) (1982) 12

Elizabeth Chacko, Marriage, Development and the Status of Women in Kerala, India in Gender and Development [Vol. 11, Issue.2, 2003](pages 52-59) (Caroline Sweetman ed. 2003)


NILS Law Review

November, 2014

Vol. 1

Aminakutty did not have a male member in the family staying with her as her son was working in Saudi Arabia. She wanted to take her neighbour, Sainaba Vayalpeedikakkal with her, but the Petitioner was given to understand that by virtue of the guidelines, the application of the Petitioner would not be considered favourably, for want of a male 'Mahram'. Referring to Article 14 of the Indian Constitution, Aminakutty argued that the Constitution guaranteed her Right to Equality before law and prohibited discrimination on grounds of religion or sex. Requiring a Mahram to accompany a Muslim woman for performing Haj is thus a violation of Article 14 of the Constitution. Further, Aminakutty stated that the decision by the Haj Committee of India is a violation of the constitutional Right to Life and Personal Liberty13 as well as the Right to Freedom to Practice any Religion and to manage Religious Affairs.14 Aminakuttyâ&#x20AC;&#x2DC;s contentions by way of writ petition were as follows: a) to declare that the stipulation in the clause for application for Haj shall be satisfied, even if the Mahram accompanying the woman is also a woman; b) declare that the stipulation in the clause which talks about a male Mahram being mandatory for companionship is arbitrary and discriminatory, and a violation of Articles 14, 25 and 26 of the Constitution in so far that it discriminates woman applicants, who are not allowed to perform Haj by insistence of male Mahram; c) to issue a writ of Mandamus or any other appropriate writ, order or direction directing the respondents to consider the application of the Petitioner, accepting the Mahram. However, the Haj Committee of India rejected her plea on grounds of womenâ&#x20AC;&#x2DC;s safety and an endorsement of the Saudi government rules. Uzma Naheed, a member of the All India Muslim Personal Law Board, is of the view that the segregation rules in Saudi Arabia are necessary as it prohibits

communication

between

13

Ind. CONST. art XXI

14

Ind. CONST. art XXV & art XXVI

15

Id., (9)

men

and

women

who

are

not

related.15


NILS Law Review

November, 2014

Vol. 1

Scholars investigated this issue when they came across two problems: the obligation of women to perform Haj vs. the Prophet‘s prohibition of a woman‘s travel without a Mahram. However, the Holy Prophet had nowhere explicitly implied or disapproved of women travelling in a group for Haj. Furthermore it is not mentioned anywhere in the Quran that it is mandatory for a woman to travel with a Mahram for Haj. UNDERSTANDING THE MAHRAM AS MALE OR /AND FEMALE COMPANION The question was whether a Mahram can be taken only as a Male companion or as a female companion too, In the case of Aminakutty, Justice P.R. Ramachandra Menon held that “it is clear that the term 'Mahram' contemplates only a 'male member' and in no circumstance, can it be a female member. The Petitioner herself has admitted in paragraph 2 of the Writ Petition, as to the necessity to have a 'Mahram' for performing 'Haj' and it has been conceded that, normally 'Mahram' is a person within the prohibited degree of marriage relationship. Since there is no dispute with regard to the status of the party, that 'Mahram' should be a person, who should be within the prohibited degree of relationship, who cannot be married. Furthermore, since the Muslim law does not envisage marriage between two women, reference to the expression 'Mahram' as a person who stands within the prohibited degree of relationship and cannot be married, undoubtedly refers to a 'male member' and not a female. The Court found that the Petitioner had approached this Court moulding the pleadings and prayers on a totally wrong and misconceived idea as to the scope of the Guidelines for application for Haj. Hence interference is declined and the Writ Petition is dismissed.‖ ANALYSIS There seems a paradox which gets compounded for women in light of the Holy Quran: ―He has chosen

you,

and

has

imposed

no

difficulties

on

you

in

religion…‖16

Islam celebrates women‘s emancipation and gives them the freedom to do business, be selfsufficient and even lead wars as in the past. Zamzam- a well located in Mecca, Saudi Arabia, is a miraculously-generated source of water from God which began thousands of years ago. When Prophet Ibrahim‘s infant son Ismail was

16

Section 22, Verse 78, The Holy Quran


NILS Law Review

November, 2014

Vol. 1

thirsty and kept crying for water while he was in the hot and dry valley with his mother, Hajar (the second wife of Prophet Ibrahim) who ran back and forth between Al-Safa and Al-Marwah hills looking for water. It is said that the Zamzam was revealed to Hajar when her son started scraping a portion of land with his feet where the water suddenly sprang out.17 The incident18of her running between the hills is remembered by Muslims when they perform their Haj. Part of the pilgrimage is to run seven times between the hills, in commemoration of Hajar‘s courage and to symbolize the celebration of motherhood in Islam as well as the leadership of women.19 As a regressive step, Muslim women today cannot freely walk in Hajar‘s footsteps in Saudi Arabia which claim to follow Hanbali Feqah, a mix up of tribalism in place of Islamic law. Author, Asra Q Nomani, is of the view that this is an interpretation of Islam by Saudi Arabia‘s intolerant Wahabbi ideology and India‘s rigid Deobandi school of thought which influences the All India Muslim Personal Law Board which supports this ban. As per the Quran, there is no specific ban against women travelling alone for Haj.20 Al-Hafiz says: ―Among the Shafi‘ite scholars the most commonly accepted opinion in this regard is that a woman may travel with her husband, or one of her Mahram relatives, or a group of trustworthy women, or even one such (trusted) woman companion. According to a view, reported by Al- Karabisi, a woman may travel by herself provided the way to Haj is secure and safe. It is further reported in Subul as- Salaam that a group of scholars hold that an old woman may travel without being accompanied by any mahram relative. According to the author of Subul as-Salaam, the Islamic scholar, Ibn Taimiyyah said that Haj of a woman without a mahram is valid, and likewise of a person who is financially not able to perform it21.

17

Shil, Mahmoud Isma‘il& ‗Abdur-Rahman‘ Abdul- Wahid, The Well of Zamzam <http://www.onislam.net/content/english/hajj/landmarks/08.shtml> accessed 1 July 2014 18

MARTIN LINGS, THE HOUSE OF GOD CHAPTER 1, MUHAMMAD. (Pub. Suhail Academy Publishing) (1983) 19

20

21

WENDELL GARY, SAVE ME IN THE NIGHT [page 515] (2011) Asra Q Nomani, Shackled faith ,Times of India, Apr 7,2013 SAYYID AS-SABIQ, Hajj ,FIQH US- SUNNAH, [pages18-19]


NILS Law Review

November, 2014

Vol. 1

Few Hadiths back the position such as the ones relating to the Haj of the wives of the Prophet after the permission of Umar ibn al-Khattab22 (a close companion of the Prophet). Author Asra Q Nomaniis also of the view that it is India‘s rigid Deobandi school of thought that influences the All India Muslim Personal Law Board which supports and encourages this ban.23 LAW OF THE LAND As per the law of the land, in this case that of Saudi Arabia, the interpretation was without any disconnect. Laws as to pilgrimage and fasting were pre- Islamic laws. Hence, it would be a mistake to think that the Quran marked a complete departure from pre-Islamic custom. Things not prohibited by the Prophet continued to be lawful and permissible as long as it did not oppose the clear text of the Quran. To avoid profanity, the interpretation followed made Haj obligatory for women only when accompanied with a Mahram. Deputy Haj minister Hatem bin Hassan Qadi added: ―The rules of Haj have been in place for many years and nothing has emerged that requires us not to abide by them.‖ Saudi Arabia‘s long standing rules on Haj pilgrimage requires that females of all nationalities under the age of 45 must have male guardians during the Haj pilgrimage. For those women over 45 years of age, the previous practice by the Saudis is to allow them entry without male guardians provided they are in groups with male tour operators and pilgrimage officials.24 The Mahram must write a letter, notarize it and present to the Saudi Embassy in the country of origin for the issuing of a Haj Visa.25 In Saudi Arabia, the Sharia is interpreted according to the Sunni culture. The law is mostly unwritten, leaving it to the discretion of judges when it comes to exercise interpretation in favour

22

23

Narrated by Al- Bukhaari,1860 [Hadith] Id., (20)

24

A Big Message (website administrator), Saudi Arabia – Nigerian Women Pilgrims Fall Foul Of Male Guardian Rule, (Sep. 30, 2012) <http://www.abigmessage.com/saudi-arabia-nigerian-women-pilgrims-fall-foul-of-male-guardian-rule.html> accessed 1 July 2014 25

Hajj-USA, Mahram issue (Guidelines) <http://www.hajjusa.com/mahram_issue.php>accessed 1 July 2014


NILS Law Review

November, 2014

Vol. 1

of tribal customs. Women‘s freedom in Saudi Arabia has always been limited. The irony of the modern society in Saudi is that while women are not allowed to drive, they are allowed to ride alone with drivers who could be a non-Mahram. The ruling by Saudi government is meant to protect the woman's reputation and dignity. Hadith says that a woman cannot be unaccompanied for more than 24 hours. Since Haj takes at least 7 days, the Saudi government sees no reason to relax the practice of accompanying Mahram. The Holy Prophet clearly instructs the husband to go for Haj with his wife. According to this, if a woman has no husband, or is financially constrained she has no obligation to perform Haj. The Kerala High Court did not give cognizance to the fact that the Saudi Arabian government gives an exception to women who are above the age of 45. For select countries like the US and the UK, the Saudi Law does allow women over the age of 45 to travel for Haj without a Mahram but with a no-objection letter from her husband, son or brother.26 For Indian citizens on the contrary, Saudi law strictly does not permit even a woman who is more than 45 years of age to travel without a Mahram. The Haj Committee of India, to date has not made any exception to an aged woman‘s pilgrimage to Mecca, despite other countries following the ‗45-year‘ rule.27 Nigerian Pilgrim Controversy In 2012, at least 1000 female Nigerian pilgrims were detained at an airport in Saudi Arabia during the Hajj season. Despite the fact that they had valid visas, Saudi authorities would not allow them into the country as they were unaccompanied by Mahrams. A spokesman for the Nigerian vice presidential office further stated that he received reports of dehumanising treatment, as the women were deprived of food and water and were forced to sleep on the floor.

26

Royal Embassy of Saudi Arabia, Washington, DC, Hajj Requirements<http://www.saudiembassy.net/services/hajj_requirements.aspx> accessed 1 July 2014 27

The present guidelines and Hajj application forms by the Hajj Committee of India for the year 2014 has no exceptional rule for an aged woman Hajj Committee of India, English Guidelines <http://hajcommittee.com/English%20GL-2014.pdf> accessed 1 July 2014


NILS Law Review

November, 2014

Vol. 1

The Saudi ambassador in Abuja himself stated that the government had been flexible on the Mahram rule in the past, but had decided to apply the law now.28 Nigerian authorities pointed out that the male guardianship rule does not apply to Nigerian women pilgrims. This is because Nigeria‘s pilgrimage commission signed a bilateral agreement with Saudi Arabia which exempts its female nationals from this male guardianship rule.29 Aminakutty, a woman in her 60s, eventually was unable to perform her Haj. Was it correct for the Haj Committee of India to not keep in-tune with Saudi Arabian laws and customs for a woman above 45 years of age? Also, does Saudi Arabia‘s restriction for women below the age of 45 violate their Right to Practice Religion? Scope of Saudi Arabian Law: An International Perspective Saudi Arabia remains one of the very few countries in the world not to accept the UN's Universal Declaration of Human Rights (UDHR). In response to the continuing criticism of its human rights record, the Saudi government points to the special Islamic character of the country, and asserts that this justifies a different social and political order. The UDHR aimed to create a framework for a universal code based on mutual consent. However, after the 1979 Islamic revolution in Iran, a new concept of cultural relativism evolved. At the 36th session of the U.N. General Assembly, the representative of Iran had declared that the UDHR represented a secular interpretation of the Judeo-Christian tradition, which could not be implemented by Muslims. If a choice had to be made, he said, between its stipulations and ―the divine law of the country,‖ Iran would always choose Islamic law. Since then, Iran has led the struggle to modify the UDHR.30

28

Nesrine Malik, Treatment of female Nigerian pilgrims embarrasses Saudis at the start of hajj by, The Guardian, (Sep. 29, 2012) 29

A Big Message (website administrator) Saudi Arabia – Nigerian Women Pilgrims Fall Foul Of Male Guardian Rule, (Sep.30 ,2012) <http://www.abigmessage.com/saudi-arabia-nigerian-women-pilgrims-fall-foul-of-male-guardian-rule.html> accessed 1 July 2014 30

David G. Littman, Human Rights and Human Wrongs, National Review Online (Jan.19, 2003) http://www.nationalreview.com/articles/205577/human-rights-and-human-wrongs/david-g-littman accessed 1 July 2014


NILS Law Review

November, 2014

Vol. 1

Saudi Arabia is one amongst the many Islamic countries that conforms to the Cairo Declaration of Human Rights (CDHRI) which was adopted in 1990. Unlike the UDHR, which is universal in its nature of rights to both men and women, the CDHRI is less universal. The CDHRI, through its conservative interpretations of Sharia law, indirectly enables the violation of other human rights that women should enjoy, which also includes the right to freedom of movement. The Government has made international commitments to women‘s rights including CEDAW, with the proviso that the convention could not override Islamic Law. The Convention obliges Saudi Arabia ―to pursue by all appropriate means and without delay a policy of eliminating discrimination against women‖ including ―any distinction, exclusion or restriction made on the basis of sex which has the purpose of impairing or nullifying the recognition, enjoyment or exercise by women … of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.‖31Saudi Arabia made a general reservation to the Convention, whereby ―in case of contradiction between any term of the Convention and the norms of Islamic Law, the Kingdom is not under the obligation to observe the contradictory terms of the Convention‖. According to Article 26 of the Saudi Constitution,32 the State protects human rights according to the Sharia. Article 70 provides that provisions of any international agreement approved by royal decree shall be valid and directly applicable in Courts. However according to a UN report33, in practice, international instruments do not have precedence over national law and it is unclear whether they have ever been used in Courts. Saudi Arabia‘s imposition of male legal guardianship on adult women violates article 15 of CEDAW, which requires states to ―accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity.‖ States parties are further

31

Human Rights Watch, Saudi Arabia‟s Obligation under International Law in Human Rights Abuses Stemming from Male Guardianship and Sex Segregation in Saudi Arabia (Apr. 2008) 32

33

S.A, Basic Law of Governance

PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS, CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS, INCLUDING THE RIGHT TO DEVELOPMENT, Report of the Special Rapporteur on violence against women, its causes and consequences by Yakin Ertürk,- Mission to Saudi Arabia. A/HRC/11/6/Add.3 dt.14 Apr 2009


NILS Law Review

November, 2014

Vol. 1

required to ensure that ―all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void.‖ With regard to non-discrimination in employment, Saudi Arabia has additional obligations as a member of the International Labour Organization (ILO) and as a party to ILO Convention No. 111 dealing with discrimination in employment. Since 1991 the ILO‘s Committee of Experts has repeatedly expressed concern about the government‘s policy on sex segregation in the workplace codified in section 160 of the 1969 Labour Code.34 Conclusion Islam is one of the very few religions that have remained constant throughout the centuries and women equality has clearly been promoted. Intervention by the UN on this matter or any country may prove to be futile, keeping in mind the general limits of the laws of intervention as applicable in the case of Saudi Arabia. Wherever there is no right of intervention, an intervention violates either the external independence or the territorial or personal supremacy.35 Advocates of Islamic modernism rely on the ideals of the Haj to support calls for greater world community and morality that are strikingly similar to the arguments of Western writers who are leading the current theoretical revolutions in international relations and international law.36 Security of a woman‘s modesty has been always put forward as the most compelling reason for a Mahram to accompany a woman performing Haj. But, is a woman‘s safety really at stake in the holy environ of Mecca where millions throng annually with a pious heart asking for forgiveness and repentance and are mesmerized with sheer intensity of the surreal experience which brings them closest to the Almighty? The biggest guard for the Hajjis is the thought that their Haj can be nullified if any kind of perversion or profanity enters their mind during Haj or Umrah. Also, 34

ILO Convention No. 111 concerning Discrimination in Respect to Employment and Occupation, adopted June 25, 1958, 362 U.N.T.S. 31, entered into force June 15, 1960. 35

L. Oppenheim, Intervention, International Law (Vol 1) (1966)(p.306)

36

Id., (3)


NILS Law Review

November, 2014

Vol. 1

while the jostling crowd during Tawaf,37can surely hurt a woman, it can create difficult situations for a weak man or a male child too. Haj is an obligation not only on Muslims, but on the nation-state - in this case the government of Saudi Arabia. It is their duty to ensure adequate security and safety of women and the weak. The uneven status of bilateral relations create divergent practices between countries like the UK and the US on one hand, and India, Nigeria and many more on the other. Does Saudi law need to relax the interpretation or do developing countries like India need deeper insights on customs and facts? The Indian Supreme Court in a recent judgment38, declared fatwas by the All India Muslim Personal Law Board to be illegal, so the advisory sanction by such bodies is to be questioned and speculated. Saudi Arabia is strategic to India‘s ‗Look Middle East‘39 policy, so while the two countries progress their economical, political and bilateral ties, it is also time for them to revisit the existing Haj stipulations and be flexible with the Mahram norms to keep in accordance with gender and human rights.

37

The ritual that involves a Muslim to circumambulate the holy Kaaba seven times in a counter-clock wise direction RUQAIYYAH MAQSOOD, WORLD FAITHS, TEACH YOURSELF-ISLAM (Page 76) 38

39

VishwaLochanMadan v. Union of India 2014 (8) SCALE330

India's new "Look Middle East" — an economic/strategic outreach to a region with which India has a trade relationship of over $180 billion, source of 60 per cent of India's energy supplies, home to 7 million Indians and massive remittances. Indrandi Bagchi, India‟s Middle East outreach is a blend of strategies ,Times of India, Feb 25,2014


NILS Law Review

November, 2014

Vol. 1

State Responsibility for Projects Causing Transboundary Effect on Environment: An Analysis Arjun Doshi & Natasha Sutaria1

International obligations States are responsible to other States for their internationally wrongful acts. A State commits an internationally wrongful act when conduct consisting of an act or omission (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation owed by that State to the injured State or the international community.2 BILATERAL TREATY OBLIGATION Obligations may arise for a State by a treaty and by a rule of customary international law or by a treaty and a unilateral act.3 There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character. 4A State cannot, by pleading that its conduct conforms to the provisions of its internal law, escape the characterization of that conduct as wrongful by international law.5 The Court6 had stated in

1

Students of B.A.LL.B. at Institute of Law, Nirma University. Authors can be contacted at doshi_arjun@yahoo.com and natasha_ilnu@yahoo.com respectively. 2

Phosphates in Morocco (Italy v. Fr.), 1938 P.C.I.J. (ser. A/B) No. 74, at 28 (June 14, 1938) [hereinafter Phosphates in Morocco]. 3

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. Unites States of America), Merits, Judgment, 1986 I.C.J. 14, ¶ 177 (June 27) [hereinafter Nicaragua]; See also North Sea Continental Shelf Cases, Judgment, 1969 I.C.J. 3, at 38–39, ¶ 63 (Feb. 20) [hereinafter North Sea Continental Shelf]. 4

Draft Articles on Responsibility of States for Internationally Wrongful Acts, Rep. of the Int‘l Law Comm‘n, 53 rd Sess., Apr. 23-June 1, July 2-Aug. 10, 2001, art. 12, U.N. Doc. A/56/10; GAOR, 56 th Sess., Supp. No. 10 (2001) [hereinafter ASR]. 5

6

Id. art. 3; Vienna Convention on the Law of Treaties, art. 27, Jan. 27, 1980, 1155 U.N.T.S. 331 [hereinafter VCLT]. International Court of Justice, est. under the U.N. Charter, October 24, 1945, 1 UNTS XVI.


NILS Law Review

November, 2014

Vol. 1

its advisory opinions on Reparation for Injuries,7 and on the Interpretation of Peace Treaties (Second Phase),8 that ―refusal to fulfil a treaty obligation involves international responsibility‖. However, States may enter into a Bilateral Treaty setting out the terms for exploitation, exploration and other like activities for natural resources. When such a treaty is entered into, the Parties should cooperate with each other in relation to the exercise of their respective rights giving due regard to each Party‘s unique interests as set out in the treaty. The acts and omissions by one State may arise on a number of occasions. Firstly, refusal for taking other State‘s consent at the time of approving activity; Secondly, approving the EIA without addressing the potential impacts of the activity on resources. Thirdly, overlooking the reports published by expert bodies on the effects of activity under the pretext of national legislation. The failure to comply with its treaty obligations9 constitutes an internationally wrongful act which entails international responsibility.10 GENERAL PRINCIPLES OF INTERNATIONAL LAW CONCERNING ENVIRONMENT The principle of Sustainable Development, which forms the basis of all environmental law, must be considered as an erga omnes obligation.11 Principle 3 of Rio Declaration on Environment and 7

Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 174, 184 (Apr. 11). 8

Interpretation of Peace Treaties (Second Phase), Advisory Opinion, 1950 I.C.J. 221 (July 18).

9

Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, 1997 I.C.J. 7, ¶ 57 (Sept. 25) [hereinafter Gabčíkovo-Nagymaros Project]. 10

ASR, art. 1; Phosphates in Morocco, 28. See also S.S. Wimbledon, 1923 P.C.I.J. (ser. A) No. 1, at 30 (Aug. 17) [hereinafter S.S. Wimbledon]; Factory at Chorzów (Jurisdiction), Judgment, 1927 P.C.I.J. (ser. A) No. 9, at 21 (July 26); Factory at Chorzów(Claim for Indemnity), Judgment, 1928 P.C.I.J. (ser. A) No. 17, at 29 (Sept. 13); Corfu Channel, Judgment, 1949 I.C.J. 4, at 23 (Apr. 9) [hereinafter Corfu Channel]; Nicaragua, ¶¶ 283 and 292; Gabčíkovo-Nagymaros Project, ¶ 47. Seven of these awards rendered in 1901 reiterated that ―a universally recognized principle of international law states that the State is responsible for the violations of the law of nations committed by its agents‖, Italian Subjects living in Peru (Italy v. Peru), 15 R.I.A.A. 389, pp. 399 (Chiessa claim), 401 (Sessarego claim), 404 (Sanguinetti claim), 407 (Vercelli claim), 408 (Queirolo claim), 409 (Roggero claim), & 411 (Miglia claim). Dickson Car Wheel Company (U.S.A.) v. United Mexican States, 4 R.I.A.A. 669, 678 (1931); International Fisheries Company (U.S.A.) v. United Mexican States, 4 R.I.A.A. 691, 701 (1931). According to the Italian-United States Conciliation Commission, no State may ―escape the responsibility arising out of the exercise of an illicit action from the viewpoint of the general principles of international law‖, Armstrong Cork Company Case— Decision No. 18, 14 R.I.A.A. 159, 163 (Italian-U.S. Conciliation Commission, 1953).


NILS Law Review

November, 2014

Vol. 1

Development of 199212 states that ―the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations‖. Principle 4 of the declaration adds that: ―in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it‖.13 These principles have been reiterated in several judicial decisions.14 No State should contribute towards disruption of balance between economic development and protection of environment. a. Precautionary Principle ―In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation.‖15 The reason for this emphasis on prevention is that damage to the environment often cannot be repaired,16 even if the causal link between the polluter and the damage may be established and evaluated. Even if the damage is reparable, the costs of rehabilitation can be prohibitive. Moreover, damage can have unpredictable and far- reaching effects.17 States have, in accordance with the UN Charter and the principles of international law, ―the responsibility to ensure that activities within their jurisdiction or control do not cause damage to 11

Gabčíkovo-Nagymaros Project.

12

U.N.G.A., 1992 Rio Declaration on Environment and Development, Annex I, U.N.Doc. A/CONF.151/26 (Vol. I) (June 13-14, 1992) [hereinafter Rio Declaration]. 13

Id.

14

Gabčíkovo-Nagymaros Project; See also Arbitration regarding the Iron Rhine (―Ijzeren Rijn‖) Railway (Belgium v. Netherlands), 27 U.N. Rep. Int‘l Arbitral Awards 35, ¶ 59 (May 24, 2005); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 29 (July 8) [hereinafter Nuclear Weapons]. 15

On May 16, 1990, Environment Ministers of the 34 member States of the UN Economic Commission for Europe and the representative of the EC, adopted The Bergen Declaration on Sustainable Development. 16

17

Rio Declaration, Principle 15.

EARTH HABITAT: ECO-INJUSTICE AND THE CHURCH'S RESPONSE 115 (Dieter T. Hessel & Larry L. Rasmussen eds., Fortress Press 2001). See alsoDONALD K. ANTON & DINAH L. SHELTON, ENVIRONMENTAL PROTECTION AND HUMAN RIGHTS 81 (Cambridge University Press 2011); RUTH MACKENZIE ET AL., AN EXPLANATORY GUIDE TO CARTAGENA PROTOCOL ON BIOSAFETY 12 (IUCN Environmental Law Centre 2003).


NILS Law Review

November, 2014

Vol. 1

the environment of other States . . .‖18A State, in spite of its territorial supremacy, is not allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring state19 control which is now a part of the corpus of international law relating to the environment.20 Although the Stockholm Declaration is a non-binding text, this principle is rooted in decisions of international tribunals21 as a part of customary international law.22 b. Duty to cooperate This, perhaps, had bestowed upon States with an important obligation, that of consultation with and warning to the neighbour whose waters, coastline and fishery resources may be adversely affected.23 It is not enough for the Actor State unilaterally and privately to determine what it thinks the environmental impact of its proposals may be. It is bound by its undertakings in the United Nations Convention on the Law of the Sea24 to contemplate the likely effect that its activities may have on other States and on the marine environment generally, and to ascertain that effect and take it into account.

18

Declaration of the United Nations Conference on the Human Environment, Stockholm, Principle 21, UN Doc. A/CONF.48/14/Rev.1 (1973). 19

1 L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE 182, §127 (2nd ed. 1912).

20

Nuclear Weapons, ¶ 29; Island of Palmas(U.S. v. The Netherlands), 2 R.I.A.A. 829 (Perm. Ct. Arb., 1928).

21

22

Trail Smelter (U.S. v. Can.), 3 R.I.A.A. 1905, 1965 (Mar. 11, 1941); Corfu Channel. PHILIPPE SANDS & JACQUELINE PEEL, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 42 (3rd ed. 2012).

23

UNEP Draft Principles of Conduct on Shared Natural Resources, U.N. Doc. A/34/557 and Corr.1 (1978); Cooperation in the field of the environment concerning natural resources shared by two or more States, G.A. Res. 3129 (XXVIII), U.N. Doc. A/9402 (Dec. 13, 1973); Charter of Economic Rights and Duties of States, G.A. Res. 3281 (XXIX), U.N. Doc. A/RES/29/3281 (Dec. 12, 1974); Recommendation of the Council on Principles concerning Transfrontier Pollution, OECD, C(74)224 (Nov. 14, 1974); Recommendation of the Council for the Implementation of a Regime of Equal Right of Access and Non-Discrimination in Relation to Transfrontier Pollution, OECD, C(78)28/FINAL (May 17, 1977); Helsinki Rules on the Uses of Waters of International Rivers, in Report of the 52nd Conf. of the International Law Association, Aug. 14-20, 1966, at 486 (1967); Montreal Resolution on Pollution of the Waters in an International Drainage Basin, in Report of the 60th Conf. of the International Law Association, Aug. 1982, at 13 (1983). 24

U.N. Convention on the Law of the Sea,Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].


NILS Law Review

November, 2014

Vol. 1

Fisheries Jurisdiction25 case, which applies mutatis mutandis the present dispute: ―Both Parties have the obligation to keep under review the fishery resources in the disputed waters and to examine together, in the light of scientific and other available information, the measures required for the conservation and development, and equitable exploitation, of those resources, taking into account any international agreement in force between them.‖26 States to establish ‗adequate international standards for the conservation and harmonious exploration of natural resources common to two or more States.27 One of the most evident tools of cooperation is the duty to negotiate when difficulty appears in the management of a shared resource or in the implementation of common project. The general obligation of States to settle their disputes by negotiation has also been recognized by the Court.28 In the Fisheries Jurisdiction case the Court stressed that negotiation must be conducted on the basis that each party must in good faith pay reasonable regard to the legal rights of the other and an equitable apportionment of the resources must be brought about.29 Co-operation includes important procedural mechanisms such as the obligation to exchange data and information regularly, the obligation to notify other riparian States of planned measures, the establishment of joint mechanisms, EIAs, the provision of emergency information, the obligation to enter into consultations, and the obligations to negotiate in good faith.30

25

Fisheries Jurisdiction (U.K. v. Iceland), Merits, Judgment, 1974 I.C.J. 3 (July 8). [hereinafter Fisheries Jurisdiction]. 26

Id. ¶ 72.

27

Co-operation in the field of the environment concerning natural resources shared by two or more States, G.A. Res. 3129 (XXVIII), U.N. Doc. A/9402 (Dec. 13, 1973). 28

North Sea Continental Shelf, ¶ 87.

29

Fisheries Jurisdiction.

30

Chinthaka Mendis - United Nations / Nippon Foundation Fellow Sovereignty vs. trans-boundary environmental harm: The evolving International law obligations and the Sethusamuduram Ship Channel Project. 2006.


NILS Law Review

November, 2014

Vol. 1

This duty has been referred to in the North Sea Continental Shelf case31.Here, the Court referred to the obligation to enter into ‗meaningful negotiations‘. An obligation to negotiate,32 to give notice and to consult33 does not imply an obligation to reach an agreement. Moreover, the obligation to consult does not imply an obligation to achieve a particular outcome. The point in emphasizing that it is a national instrument or procedure is to stress that it is not a joint procedure to be carried out in co-operation with other States.34 c. Obligation to undertake holistic EIA A State cannot, by pleading that its conduct conforms to the provisions of its internal law, escape the characterization of that conduct as wrongful by international law. 35 Conversely, a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force.36 Conformity with the provisions of internal law in no way precludes conduct being characterized as internationally wrongful is equally well settled.37 Insofar as a State does not take any positive steps to assess the impact, inspite of knowing the potential adverse effects of the activity and take appropriate steps,38 constitutes inaction on their 31

North Sea ContinentalShelf Cases, Judgment, 1969 I.C.J. 3 (Feb. 20).

32

Railway Traffic Between Lithuania and Poland, 1931 P.C.I.J. (ser. A/B) No. 42, at 116 (Oct. 15).

33

Lake Lanoux Arbitration (France v. Spain)12 R.I.A.A. 281 (1957) [hereinafter Lake Lanoux].

34

Draft Articles on State Responsibility,366 and 402, The International Law Commission takes the same view. In the commentary to its draft Articles on the Prevention of Transboundary Harm, it cites Principle 17 and notes that it is the Stateof origin which should ensure that a risk assessment is undertaken. 35

ASR, art. 3.

36

Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932 P.C.I.J. (ser. A/B) No. 44, at 4 (Feb. 4) [hereinafter Treatment of Polish Nationals]. 37

S.S. Wimbledon, 29-30; Greco-Bulgarian ―Communities‖, Advisory Opinion, 1930 P.C.I.J. (ser. B) No. 17, at 32 (July 31); Free Zones of Upper Savoy and the District of Gex (Second Phase), 1930 P.C.I.J. (ser. A) No. 24, at 12 (Dec. 6); Free Zones of Upper Savoy and the District of Gex, Judgment, 1932 P.C.I.J. (ser. A/B) No. 46, at 167 (June 7); Treatment of Polish Nationals, 24; Exchange of Greek and Turkish Populations, Advisory Opinion, 1925 P.C.I.J. (ser. B) No. 10, at 20 (Feb. 21); Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928 P.C.I.J. (ser. B) No. 15, at 26-27 (Mar. 3). See also Acquisition of Polish Nationality, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 7, at 26 (Observations of Lord Finlay).


NILS Law Review

November, 2014

Vol. 1

part. In the Corfu Channel case, the ICJ held that it was a sufficient basis for Albanian responsibility that it knew, or must have known, of the presence of the mines in its territorial waters and did nothing to warn third States of their presence.39 In the United States Diplomatic and Consular Staff in Tehran40 case, the Court concluded that the responsibility of the Islamic Republic of Iran was entailed by the ―inaction‖ of its authorities which ―failed to take appropriate steps‖, in circumstances where such steps were evidently called for. 41The duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under general international law.42 It is also important to bear in mind that an EIA is not an event, but a process. The object of an EIA is to provide decision-makers with information about likely environmental effects when deciding whether to authorize the proposed activity and on what terms. An EIA is ―a national procedure for evaluating the likely impact of a proposed activity on the environment‖43, or in the words of Principle 17 of the 1992 Rio Declaration on Environment and Development, ―a national instrument‖.44 The process employed for carrying out an EIA is not set out in any international instrument. 45 Therefore, reference has to be made to domestic law or possibly another international agreement to supply the specific procedural requirements of the EIA.46 38

Compromis, ¶ 23 & 25.

39

Corfu Channel, 22–23.

40

United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, 1980 I.C.J. 3 (May 24). 41

Id. ¶¶ 63 & 67. See also Velásquez Rodríguez v. Honduras, Merits, Inter-Am. Ct. H. R. (ser. C) No. 4, ¶ 170 (July 29, 1988): ―under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions‖; The Acquisition of Polish nationality (Germany v. Poland), 1 R.I.A.A. 401, 425 (July 10, 1924). 42

MOX Plant (Ireland v. United Kingdom), Case No. 10, Provisional Measures Dec. 3, 2001, available at http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_10/Order.03.12.01.E.pdf (last visited Jan. 3, 2014), ¶ 82. 43

Convention on Environmental Impact Assessment in a Transboundary Context, art. 1(vi) (1991) [hereinafter EIA Convention]. 44

U.N.G.A., 1992 Rio Declaration on Environment and Development, Annex I, U.N.Doc. A/CONF.151/26 (Vol. I) (June 13-14, 1992).


NILS Law Review

November, 2014

Vol. 1

The rule that the characterization of conduct as unlawful in international law cannot be affected by the characterization of the same act as lawful in internal law makes no exception for cases where rules of international law require a State to conform to the provisions of its internal law. Compliance with internal law is relevant to the question of international responsibility. But this is because the rule of international law makes it relevant, e.g. by incorporating the standard of compliance with internal law as the applicable international standard or as an aspect of it.47 Principle 4 sets out a minimum standard for national EIA laws that are principally focused on internal or domestic impacts.48 Principle 4 is thus a model law for national legislation, not a statement of what international law requires States to assess in a transboundary setting. The distinction can be seen in Principle 12, the final article in the UNEP EIA Principles, which does apply to transboundary EIA, but which only requires transmission to the potentially affected State of ―any relevant information from the EIA, the transmission of which is not prohibited by national law.‖49 What stands out here is that there is no requirement to transmit to other States information about all of the matters listed in Principle 4.50 Each State must determine in its domestic legislation or in the authorization process for the project, the specific content of the EIA required in each case. In doing so, it must have regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment. Furthermore, due diligence must be exercised in conducting such an assessment.51 45

art. 8, 1991 Protocol on Environmental Protection to the Antarctic Treaty, Annex I; Principle 1, UNEP on Goals and Principles of EIA available at<http://www.unep.org/regionalseas/publications /reports/RSRS/pdfs/rsrs122.pdf>[hereinafterUNEP on EIA] [endorsed by United Nations General Assembly Resolution 42/184 (1987)]; Alan Boyle, Developments in International Law of EIA and their Relation to the Espoo Convention, 20(3) REVIEW OF EUROPEAN COMMUNITY & INTERNATIONAL ENVIRONMENT LAW 227-231 [hereinafter Boyle on EIA]. 46

Charles M. Kersten, Rethinking Transboundary Environmental Impact Assessment, 34 YALE J. INT‘L. L. 173.

47

Draft Articles on Responsibility of States for Internationally Wrongful Acts, Rep. of the Int‘l Law Comm‘n, 53 rd Sess., Apr. 23-June 1, July 2-Aug. 10, 2001, art. 12, U.N. Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10 (2001) [hereinafter Draft Articles on State Responsibility]. 48

UNEP on EIA, Appendix II.

49

Id. Principle 4.

50

Id. Principle 12.

51

Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2010 I.C.J. 14, at 205 (Apr. 20).


NILS Law Review

November, 2014

Vol. 1

Due diligence is manifested in reasonable efforts by a State to inform itself of factual and legal components that relate foreseeable to a contemplated procedure and to take unilateral measures, in a timely fashion, to address them.52 An EIA need not address every aspect of a project in depth, and that its purpose is to assist the decision-maker and alert the public, not to test every possible hypothesis or provide detailed solutions to problems that have been identified.53 So long as the decision-maker complies with these procedural steps in good faith, it has fulfilled its obligations and is free to adopt even the most ecologically unsound plan.54 Those decisions are for the relevant public authority, balancing the information provided by the EIA against whatever other considerations are considered decisive, including economic development. It is clear that a ‗satisfactory‘ EIA need not show that there will be no risk of environmental harm. It will be sufficient if it provides the necessary information about the project‘s likely impact and follows the proper process.55 d. Exclusive jurisdiction to carry out certain activities in the Exclusive Economic Zone In the EEZ, the coastal State has jurisdiction with regard to the establishment and use of artificial islands, installations and structures.56 It shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of: (a) artificial islands; (b) installations and structures for the purposes provided for in article 56 and other economic purposes; (c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.57

52

Draft Articles on State Responsibility, 393.

53

Prineas v. Forestry Commission of New South Wales, 49 LGERA 402 (1983); Belize Alliance of Conservation Non-Governmental Organisations v. Dept. of Environment, UKPC No.63 (2003); Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989). 54

55

56

57

Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989). Boyle on EIA,at 33. U.N. Convention on the Law of the Seaart. 56(1)(b)(i), Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].

UNCLOS, art. 60(1); See also IMO Maritime Safety Committee, 55th Session, April 1988; Ijlstra Guidelines and standards for the removal of offshore installations and structures on the Continental Shelf and in the EEZ,in Essays


NILS Law Review

November, 2014

Vol. 1

e. Necessity to obtain prior consent of other State As to the question whether the prior consent of Spain would be necessary, the Tribunal was of the opinion that such an essential restriction on sovereignty could only follow from exceptional circumstances, such as regimes of joint ownership, co-imperium or condominium.58 Some treaties establish the principle that one State, to be able to carry out a work or hydraulic project, must have the consent of the other contracting State. In these cases, each State has a veto right with respect to the works and projects that may be undertaken by its co-contracting party since, for its realization, it must have the latterâ&#x20AC;&#x2DC;s agreement. The consent of the co-contracting State is necessary, regardless of whether the hydraulic work project will or will not affect its territory. The existence of a legal regime of this type must be expressly stipulated in a treaty.59 States likely to be affected are given the right of engagement with the State of origin in designing and, where appropriate, in the implementation of a system of management of risk commonly shared between or among them. The right thus envisaged in favour of the States likely to be affected however does not give them the right to veto the activity or project itself.60 Claim for Compensation for Transboundary Harm Every internationally wrongful act of a State entails the international responsibility of that State.61 First, the conduct in question must be attributable to the State under international law. Secondly, for responsibility to attach to the act of the State, the conduct must constitute a breach of an international legal obligation in force for that State at that time.62The international responsibility of a State which is entailed by an internationally wrongful act involves legal in the New Law of the Sea (Vukas ed., 1990), at 55-78; seeN. PAPADAKIS, THE INTERNATIONAL REGIME OF ARTIFICIAL ISLANDS 933-935 (1977). 58

Lake Lanoux.

59

Julio Barberis, Shared Natural Resources Among States and International Law, UCM, Vol. IX, Annex 198, Âś 46 (1979). 60

Draft Articles on State Responsibility.

61

Id.art. 1.

62

Id. art. 2.


NILS Law Review

November, 2014

Vol. 1

consequences.63 The responsible State is under an obligation to make full reparation for the injury, includes any damage, whether material or moral, caused by the internationally wrongful act.64 The essential principle contained in the actual notion of an illegal act—a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals—is that reparation must, as far as possible, wipe out all the consequences of the illegal act. Subsequently, the situation must be re-established in such a way that would be likely to have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear. The award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it. Such principles should serve to determine the amount of compensation due for an act contrary to international law.65 The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution. The compensation shall cover any financially assessable damage including loss of profits insofar as it is established.66 The reference point for valuation purposes is the loss suffered by the claimant whose property rights have been infringed. This loss is usually assessed by reference to specific heads of damage relating to (i) compensation for capital value; (ii) compensation for loss of profits; and (iii) incidental expenses.

63

ASR, art. 28.

64

ASR, art. 31.

65

Factory at Chorzów (Claim for Indemnity), 47.

66

ASR, art. 36; Gabčíkovo -Nagymaros Project, ¶ 152. See alsoFactory at Chorzów (Claim for Indemnity), 27, declaring that ―[i]t is a principle of international law that the reparation of a wrong may consist in an indemnity‖; Lusitania Cases, 7 R.I.A.A. 32, 39 (1923).


NILS Law Review

November, 2014

Vol. 1

State responsibility represents the consequence of, and sanction against, non-performance by states of their international obligations.67 In other words, there is no breach of international obligation unless the state has the intention to do so or is negligent.68 Moreover, no claim for compensation lies for damages which are speculative and not financially assessable. Compensation corresponds to the financially assessable damage suffered by the injured State or its nationals.69 The scope of this obligation is delimited by the phrase any financially assessable damage, that is, any damage which is capable of being evaluated in financial terms.70 Tribunals have been reluctant to provide compensation for claims with inherently speculative elements.71 The lucrum cessans must be the direct fruit of the contract and not too remote or speculative.72 The U.N.C.C. has also stressed the requirement for claimants to provide clear and convincing evidence of ongoing and expected profitability.73 Conclusion The failure to comply with its treaty obligations constitutes an internationally wrongful act of a State which entails its international responsibility. It is not enough for a State to unilaterally determine what it thinks the environmental impact of its projects may be. It is bound by its undertakings in UNCLOS to contemplate the likely effect that its activities may have on other States.

67

BRIAN D. SMITH, STATE RESPONSIBILITY AND THE MARINE ENVIRONMENT: THE RULES OF DECISION6 (OUP 1988).

68

Larisa Kralj, State Responsibility and the Environment, available at <http://lib.ugent.be/fulltxt/RUG01/001/787/295/RUG01-001787295_2012_0001_AC.pdf> (last visited Jan. 3, 2014). 69

Draft Articles on State Responsibility, art. 36.

70

Id.

71

Id.

72

Shufeldt Claim (U.S. v. Guatemala), 2 R.I.A.A. 1079, 1099 (1930); Amco Asia Corp. v. Republic of Indonesia, 1 I.C.S.I.D. Reports569,(1990), at 612 and 178. 73

See Report and Recommendations made by the Panel of Commissioners concerning the First Instalment of E3. Claims, 17 December 1998 (S/AC.26/1998/13), at 147.


NILS Law Review

November, 2014

Vol. 1

The EIA must address the potential impacts of any technical activity carried out in the water to be in conformity with international law. A Stateâ&#x20AC;&#x2DC;s conduct may be a combination of an action and an omission which is the basis for responsibility. The responsible State is under an obligation to make full reparation for the injury, which includes any material damage, caused by the internationally wrongful act. In the exclusive economic zone, the coastal State has jurisdiction with regard to the establishment and use of artificial islands, installations and structures. It shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of: (a) artificial islands; (b) installations and structures for the purposes provided for in article 56 and other economic purposes; (c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone. An EIA, carried out in accordance with domestic law may be valid and in consonance with the international law. It may not be necessary to obtain the consent of the other State while undertaking projects having transboundary effect in terms of exercise of its territorial sovereignty. The duty to co-operate does not bestow on a State the right to veto the activity or project itself. Moreover, compensation is not payable where the loss is not financially assessable.


NILS Law Review

November, 2014

Vol. 1

Arbitrating Competition Law Issues: A Critical Analysis in the Context of the Indian Competition and Arbitration Law Regimes Nupur Pandit1

Introduction Arbitration Law and tribunals made there under have been making steady progress in providing efficient relief to disputing private parties. However, the nature of arbitration tribunals and the ever-expanding scope of disputes submitted to it have raised concerns regarding the arbitrability of certain issues. Competition Law, which can be categorized as a public law concern is one of such issues. The viability of allowing an extra-judicial body to adjudicate upon issues of farreaching socio-economic importance has been doubted. Despite the doubts and challenges, arbitrability of competition law is important with the increase in competition disputes and the Competition Commission of Indiaâ&#x20AC;&#x2DC;s (CCI) limited resources. Unlike other jurisdictions which have a lot of discourse surrounding this topic, Indian jurisprudence is limited. That, however, should not be construed as a judgment on the significance of the issue. Allowing or even disallowing arbitration of competition law issues can have far-reaching implications. This paper attempts to encapsulate and scrutinize the existing debate in the context of the Indian regulatory framework. The first part of the paper will provide an overview of the central Acts pertaining to the Indian Arbitration and Competition Law regime. It will then proceed to look at the effect of construing statutory provisions harmoniously. The second part will build upon the previous chapter to look at the judicial discourse on the topic at hand- domestically and in the United States of America where anti-trust jurisprudence is very well-developed. The third part will compare the potential advantages and disadvantages which may arise upon allowing competition disputes to be arbitrated. The paper will conclude with a brief paragraph on the way to settle the debate in light of the above discussion.

1

Nupur Pandit, 4th Year, West Bengal University of Juridical Sciences, Kolkata.


NILS Law Review

November, 2014

Vol. 1

Overview of the Acts and the Statutory Provisions The Arbitration and Conciliation Act, 1996 (Arbitration Act) governs the field of the arbitration in India. It was enacted with a view to consolidate and amend Indian arbitration law and bring it in sync with Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL Model Law) so as to bring uniformity in arbitration regimes across the globe.2 The aim of the Act is to provide an alternative to the resource and time intensive adjudicative process but having a binding and conclusive effect. It further allows the parties to appoint the venue, applicable laws, arbitrators, etc. of their choice subject to a bare minimum of statutory requirements. In essence, arbitration offers a very viable alternative to parties, to solve their private disputes.3A vast majority of the claims heard by a tribunal constitute of commercial disputes since it complements the requirements of commercial adjudication, that of, relatively prompt decision making coupled with an enforceable award. On the other hand, the objective of Competition Law is prohibition of anti-competitive agreements, abuse of dominance and anti-competitive mergers.4 It aims to make the market work better by regulating private powers with a view to make markets more competitive and prevent attempts at monopolizing the marketplace.5 The Competition Law regime in India is governed by the Competition Act, 2002 (Competition Act) and the Competition Commission â&#x20AC;&#x201C; CCI (set up under the Act). Though enacted in 2003, the Act was subject to phased enforcement coupled with several legislative challenges6. As a result, the CCI was functional only by mid-2009.7As 2

Proposed Amendments To The Arbitration & Conciliation Act, 1996 Consultation Paper, Ministry Of Law And Justice. See more: http://lawmin.nic.in/la/consultationpaper.pdf last visited on 11 August 2014. 3

O.P. Malhotra, The Law and Practice of Arbitration and Conciliation, Lexis Nexis, 2 nd Edition 2006

4

Competition Law Today Concepts, Issues, and the Law in practice (Edited by VinodDhall) (Oxford University Press) 2007 p.4 5

IbidVinodDhall p.3

6

BrahmDatt v. Union of India (2005) 2 SCC 431

7

Avirup Bose: High five for India's competition law regime , Business Standard, May 26, 2014

See more: http://www.business-standard.com/article/opinion/avirup-bose-high-five-for-india-s-competition-lawregime-114052601251_1.html last visited on 7 August, 2014.


NILS Law Review

November, 2014

Vol. 1

can be inferred, the interaction between arbitration and the CCI is relatively new and unexplored, as a result. In order to construe the statutes harmoniously it is crucial to look at any statutory provisions which hierarchizes one over the other or promotes a supplementary reading, etc. The Competition Act, in express words, makes it clear that though it shall be construed harmoniously8 with other laws, in the event of any inconsistency, it shall have an overriding effect over the latter9. Thereby it clearly discloses the legislative intent of prioritizing the Competition Act over every other law, including the Arbitration Act. S.61 further goes on to exclude the jurisdiction of any Court and â&#x20AC;&#x2014;other authorityâ&#x20AC;&#x2DC; with respect to powers conferred by or under this Act.10 A collective reading of S.60-62 would imply the complete exclusion of the Arbitral Tribunal in favour of the CCI and its appellate mechanism11Upon a perusal of the Arbitration Act, it is found to be a facilitative and descriptive Act allowing adjudication of disputes across various Acts and describing the process of arbitration respectively. Judicial discourse on the Topic INDIA- PRE AND POST THE COMPETITION ACT In the pre-2003 period, the Monopolies and Restrictive Trade Practices Act, 1969 (it was repealed by the Competition Act) was in place to regulate competition in India. During this period, the Supreme Court in Man Roland Druckimachinen Ag V. Multicolour Offset Ltd.12 heard an interesting challenge to the jurisdiction of the Commission set up under the MRTP Act, on account of a prevailing arbitration agreement between the parties. The Court conceded to the argument that it shall not interfere when parties have submitted themselves to a particular 8

Section 62: The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. 9

Section 60: The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. 10

Section 61: No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Commission or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. 11

12

Competition Appellate Tribunal 2004 4 Scale 872


NILS Law Review

November, 2014

Vol. 1

jurisdiction. However, it was held that in case of statutorily defined remedies and offences as under the MRTP Act, the jurisdiction was retained by the Commission founded under the Act. However, since then the Competition Act of 2002 has been in place. The provisions of this Act were scrutinized when the Delhi High Court dealt with the issues of arbitrating competition law disputes in Union of India v Competition Commission of India13. The facts of the case are as follows: the aggrieved party approached the CCI as an informant and alleged that the Ministry of Railways and the Container Corporation of India had abused their dominant position. The claimant/alleging party had contracted with the Railways in this regard and was bound to suffer due to such abuse. Upon being convinced of a prima facie case, the CCI ordered the Director General to investigate into the matter, post which, the Director General sent out a notice to the Railways. As a reply to this notice, the Railways filed a Writ Petition with the Delhi High Court. The two-pronged arguments of the Railways were as follows: a) they were carrying out a sovereign function and hence they should be exempted from judicial scrutiny; b) the contract was covered by an arbitration agreement and therefore the CCI had no jurisdiction. In furtherance of the same, the Railways moved an application under Section 8 of the Arbitration Act for referring the dispute to an arbitral tribunal. The Commission while dismissing the applications pleading for arbitration, referred to the effect of S.60 to 62 of the Competition Act and made a clear distinction between the scope of powers and adjudication of an arbitration tribunal and that of the Commission. The Delhi High Court, rightly, upheld the reasoning. It held that the scope of the proceedings in the two regimes is distinct. Since the Arbitration Act focuses on matters of contract law, etc. but the Competition Act inquires into questions of abuse of dominant position by parties, etc. Additionally, the HC questioned the mandate the Tribunal would rely on to adjudicate such complex issues of socio-economic nature. Whereas upon a consideration of these factors supplemented by Competition Actâ&#x20AC;&#x2DC;s express overriding power, one could make a strong case for excluding competition law from the purview

13

W.P.(C) 993/2012 & C.M. Nos. 2178-79/2012


NILS Law Review

November, 2014

Vol. 1

of arbitration, several foreign jurisdictions have held otherwise. The next part would peruse the United States jurisprudence on this topic and contrast it with Indian jurisprudence, so as to put forth a case in favour of letting the two regimes overlap. US JURISPRUDENCE United States of America has one of the most long standing and well-developed competition and arbitration law regimes in place.14 It is for this reason; the author has chosen to contrast it with Indian jurisprudence. The Sherman Act of 1890 and the Federal Arbitration Act of 1925 govern the Competition and Arbitration jurisprudence of USA respectively. USA too started off on the back foot with respect to the arbitrating competition law in American Safety Equip. Corp. v. J.P. Maguire 8c Co.15The US Court opposed arbitrating competition law issues and provided a reasoning which was very similar to that taken by the Delhi Court in UOI V CCI. However, in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.16, the US SC decided in its favour at least with respect to international arbitration agreements. Pursuant to an automobile industry dispute (anti-trust issue), one of the parties chose to exercise the contractual arbitration agreement. The other party challenged the basis of such proceedings. The Supreme Court held that international arbitration agreements can decide competition law issues. The Court categorically rejected concerns of arbitration tribunals not having the mandate or the competence of deciding such issues. It speaks in detail about international comity and agreements which require enforcement of such contracts. It gave importance to the partiesâ&#x20AC;&#x2DC; intention to arbitrate and suggested appointment of competent competition law experts in such matters, among others. Though it restricted itself to the international commercial arbitrations, Mitushibi played a crucial role in further cases extending the formerâ&#x20AC;&#x2DC;s principle domestically.17 Finally, the US SC in 14

The Antitrust Laws, Federal Trade Commission

See more: http://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/antitrust-laws last visited on 12 August 12, 2014. 15

391 F.2d 821 (2d Cir. 1968)

16

473 U.S. 614 (1985)

17

Thomas J. Brewer, The Arbitrability Of Antitrust Disputes: Freedom To Contract For An Alternative Forum, Antitrust Law Journal-American Bar Association, Vol. 66, No. 1 (1997), pp. 91-126


NILS Law Review

November, 2014

Vol. 1

Gilmer v. Interstate/Johnson Lane Corp.18 which involved a dispute pertaining to arbitrability of age discrimination suits opined that arbitration of statutory rights including anti-trust/competition law disputes can be enforced even domestically. Viability (or Lack Thereof) of Allowing Arbitration of Competition Law Disputes Statutory bar apart, the practical implications of permitting such adjudication has several criticisms. The argument against making competition law disputes arbitrable is multi-pronged. Firstly, competition law more often than not has far-reaching implications on market forces and public utilities.19 The provision of these services can very well be contractual obligations between a State instrumentality and a private party or between private parties; an example of the former would be contracts given out by railways,20 defence, etc which are cases of monopsony21 wherein the sellers have no alternative but to sell to these entities. Arbitrariness in awarding these contracts would reduce competition and effectively mean higher expenditure for the public. To allow a private adjudicator to decide as to the merits of such a matter would extend beyond merely â&#x20AC;&#x2014;commercialâ&#x20AC;&#x2DC; arbitration and affect public utilization of resources and services. This would lead to the second argument, that of, misusing the advantages an arbitration tribunal provides, to evade the statutory consequences of illegal and punishable acts under the Competition Act. Consider the following: parties can agree upon a contract which restricts the substantive laws applicable (to exclude laws unfavourable to them), or which shields illegality in confidential tribunal proceedings, etc. 22

See more: http://www.jstor.org/stable/40843393 last visited 12 August, 2014. 18

19

500 U.S. 20 (1991). Supra note 3

20

As was the case in Union of India V Competition Commission of India elaborated above.

21

A market situation in which there is only one buyer.

22

Sandeep Suresh, Arbitrating Competition Law Disputes: Disregarding the Fundamentals for a Pro-Arbitration World, Penn Undergraduate Law Journal. See more: http://www.pulj.org/the-roundtable/arbitrating-competition-law-disputes-disregarding-the-fundamentalsfor-a-pro-arbitration-world last visited 12 August 2014. Section 29 of the Arbitration and Conciliation Act, 1996


NILS Law Review

November, 2014

Vol. 1

Thirdly, and most importantly, an arbitral tribunal unlike the CCI/COMPAT set up under the Competition Act, may not have the requisite skills, knowledge, remedial, investigative powers, etc.23 Since, CCI consists of experts with years of experience backed with statutory authority in terms of adducing evidence, passing orders to regulate mergers/cartels, etc. having suo moto powers, among others.24 The arguments in favour of allowing this preposition have circled around the intention of parties to arbitrate and the faith in the competence of the tribunals to deal with such complex issues. It has been urged that experts can be brought on board to bring in a better understanding of competition law in the tribunals, etc. Further, one can argue that if not completely, certain aspects of competition law can be dealt via arbitration. 25 Consider the case of Hindustan Petroleum Corporation v Pink City.26 It saw the Apex Court deal with the challenge to arbitral proceedings on account of criminal charges on one of the parties. The Court, very rightly, recognized the principle that, ‗The existence of dual procedure; one under the criminal law and the other under the contractual law is a well-accepted legal phenomenon in Indian jurisprudence‘. Essentially, the Court allowed the arbitration tribunal to adjudicate on the aspect of contractual damages payable by the accused to the claimant while the on-going criminal proceedings would decide as to the guilt of the accused. The author pursuing the same line of thinking proposes that the contractual obligations of competition law disputes be considered distinctly from its public law dimension. In pursuance of the same, the former should be allowed under arbitration tribunals and the latter should be the CCI‘s concern.

23

24

Union of India V. Competition Commission of India W.P.(C) 993/2012 & C.M. Nos. 2178-79/2012 Supra note 3

25

Payel Chatterjee and Simone Reis, Private Enforcement of Competition Law Issues Competition Commission of India vis-à-vis Alternate Forums - Is it actually an option?, Nishith Desai Associates. See more: http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Private_Enforcement_of_Competition_Law_Issues.pdf last visited 12 August 2014. 26

2003 (6) SCC 503


NILS Law Review

November, 2014

Vol. 1 Conclusion

Arbitration and competition law represent two broad ends of the spectrum. Arbitration is a facilitative procedure for resolving disputes amongst parties, which impact their rights. Competition law, on the other hand, is meant to affect the economy and consumers at large. The author believes that the Delhi HC was correct in disallowing arbitration of the issue. Though a number of foreign jurisdictions have allowed such arbitration27, the author believes that India should not necessarily conform as this issue is in a nascent stage of development in India. Further, competition law resolution has a considerable public good dimension to it. Allowing private adjudicators into this arena may have irreparable consequences and be subject to public policy challenges under Section 34.28 To conclude, the author would state that, the middle path of seeking contractual damages in a tribunal and statutory rights in CCI (as suggested above) would allow for a mutual co-existence of these regimes while also reducing the burden of the CCI and resource-commitments of the parties involved.

27

Deyan Draguiev, Arbitrability of Competition Law Issues Reinforced, Kluwer Arbitration Blog, 10 January 2014. See more: http://kluwerarbitrationblog.com/blog/2014/01/10/arbitrability-of-competition-law-issues-reinforced/ last visited on 12 August 2014 28

Section 34 (2)(b)(ii) on Arbitration and Conciliation Act, 1996.


NILS Law Review

November, 2014

Vol. 1

Dilemma of Continuing with Armed Forces (Special Powers) Act in Jammu and Kashmir, India Mohammad Nizam Ashraf Khan & Mohammad Umar 1

Introduction India is surviving as a democracy because it still follows the Rule of Law principle. There are a few deviations, but the overarching principle holds our country together and gives us a starting point to debate and discuss these deviations. The importance of rule of law cannot be elucidated sufficiently2 though separation of powers between the organs of governance and equality of law are integral parts of it. Giving wide powers to the Army through a law, creates a mere possibility of abuse of power, which cannot be a ground for holding a law unconstitutional as only the actual exercise of the power conferred is looked upon3. For instance in Salwa Judum case4, while the Court did go into the rhetoric of abuse of the people of Chhattisgarh and the human rights violations therein, the ratio of holding the law unconstitutional was merely on the technical grounds of different recruits being treated differently, i.e. the law was held to be invalid under Article 14. It is for the said reason that repeal of the Armed Forces (Jammu and Kashmir) Special Powers Act5, 1990 was recommended by the 2005 BP Jeevan Reddy Review Committee on the AFSPA6 1

Mr. Mohd. Nizam is an Assistant Professor at the School of Law, Galgotias University, Greater Noida, Uttar Pradesh. Mr. Mohd. Umar is a M.Phil. Research Scholar at Jawahar Lal Nehru University, New Delhi. Authors can be contacted at nizamkhan.hnlu@gmail.com and umar.hnlu@gmail.com respectively. 2

Andras Sajo (ed.), Human Rights with Modesty: The Problem of Universalism 251(Martinus Nijhoff Publishers, Netherland, 2004).

3

Magganlal Chhagganlal v. Greater Bombay Muncipality (1974) 2 SCC 402.

4

Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547; V. Venkatesan, A Proven Case, FRONTLINE, July 30-August 12, 2011, Volume 28, Issue 16.

5

Hereinafter ―AFSPA‖/ ―the Act‖.

6

Government of India, Report: Committee to Review the Armed Forces (Special Powers) Act, 1958 (Ministry of Home Affairs, 2005).


NILS Law Review

November, 2014

Vol. 1

and by Amnesty International.7 However these reports only came in public eye after October 21, 2011, when the Chief Minister of Jammu & Kashmir8 announced that there will be a partial withdrawal of the AFSPA from the State of J&K. Furthermore two committees have also been appointed by the J&K Government to review the Act and suggest possible measures. As of now the matter remains in political suspension in the higher echelons of government which waits for the Cabinet Committee on Security to convene and take a decision on the matter.9 The Controversy The AFSPA, 199010 has been described as one of the most ‗draconian‘ laws to have been enacted in the country since it gives wide and arbitrary powers to the Armed forces. This Act was first enacted in the States of Assam and Manipur under the title 'The Armed Forces (Assam and Manipur) Special Powers Act, 1958‘. When the new States of Arunachal Pradesh, Meghalaya, Mizoram, Nagaland and Tripura came into being, the Act was amended11 to apply to these States. Since the State of J&K faced a situation of perpetual violence from terrorist and insurgent activities, and from its neighboring countries like Pakistan and China, the AFSPA, 1958 was extended in its application to the State of J&K. The Act was enacted under Entry 2-A of List-I of the Seventh Schedule by the Parliament which has the power to legislate on almost all the matters of the Union List with respect to J&K.12 Entry 2-A of the Union List talks about the deployment of armed forces in the aid of civil power in any State. The expression ―in aid of civil power‖ implies that deployment of the armed forces of the Union shall be for the purpose of

7

Amnesty International, India: Briefing on the Armed Forces (Special Powers) Act, 1958, AI Index: ASA 20/025/2005, May 9 2005.

8

Hereinafter ―J&K‖.

9

Anil Anand, Govt of India Unclear on Interlocutors Report, AFSPA, Available at: http://www.greaterkashmir.com/news/2013/Feb/1/govt-of-india-unclear-on-interlocutors-report-afspa-5.asp (Visited on January 21, 2014).

10

Act 21 of 1990

11

By Act 7 of 1972 and Act 69 of 1985

12

Jain, supra note 15, at 787.


NILS Law Review

November, 2014

Vol. 1

enabling the civil power in the State to deal with the situation affecting maintenance of public order which has necessitated the deployment of the armed forces in the State.13 Prima facie, one may question the constitutional validity of the AFSPA on the ground that the exercise of powers by the Armed forces under the Act remains virtually unchecked due to which it is ultra vires the Constitution. However, the constitutional validity of this Act has been upheld in landmark judgment of Naga People‟s Human Rights Movement v Union of India14. It must be noted here that the question of ‗constitutional validity‘ is not the same as the ‗desirability‘ of the Act.15 Since the provisions of the AFSPA, 1958 were intensely opposed by the North-Eastern states, the Central Government set up a 5-member Committee, headed by Justice Jeevan Reddy, to review the concerns of the people while keeping in mind the imperatives of security and the maintenance of public order. 16 The Committee was directed to advise the Government of India whether: 1. To amend the provisions of the Act; or 2. To replace the Act with a more humane Act. The Committee heard representations from various individuals, organizations, parties, institutions, and non-governmental organizations; as well as representations from the Armed Forces functioning in the North-Eastern Areas. Almost all of the representations demanded the repeal of the Act calling it ―undemocratic, harsh and discriminatory‖.17 On the other hand, the members of the Armed Forces contended that it will be difficult for their forces to work in these areas without the umbrella protection given under the Act.

13

D.D. Basu, Shorter Constitution of India 2336 (LexisNexis ButterWorths, Nagpur, 14th edn., 2009); Naga People‟s Human Rights Movement v. Union of India, (1998) 2 SCC 109, [hereafter ―NPHRM case‖].

14

(1998) 2 SCC 109.

15

Ministry of Home Affairs, Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958, 74 (2005).

16

Ministry of Home Affairs Office Order No. 11011/97/2004-NE-III dated 19th November, 2004.

17

Committee Report, supra note 28, at 42-43.


NILS Law Review

November, 2014

Vol. 1

Subsequently, the Committee recommended that the Act must be repealed because it has ―become a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness‖.18 Though the Report did not expressly deal with the AFSPA, 1990 the recommendations of the report are material in understanding and appraising the content of the 1990 Act. The AFSPA has been condemned by the United Nations which recently asked India to repeal the AFSPA, stating that ―it has no role to play in a democracy‖. 19 The demand for the repeal of the AFSPA has been made by the State Government of J&K, various NGOs and several politicians.20 Chief Minister of J&K, Omar Abdullah has said that his reason for supporting the withdrawal of AFSPA is based on logical reasons since “there is no rationale for continuing the AFSPA as the country is not facing any internal threat or conflict”.21 The issue of the AFSPA has become an ongoing political dance where different political parties have raised conflicting opinions about the AFSPA.22 The Army has responded by saying that the situation in J&K is fragile and any dilution in the powers and protections given under the Act will be adversely affecting the functions of the armed forces.23 However, their stand on the matter has been diminished in the eyes of the public because of cases of fake encounters such as, Pathribal (2000)24 and Machhil (2010)25. For instance, in the Pathribal encounter case, the Central Government refused to give a sanction for prosecution leaving the army officers responsible for the death of innocent civilians, scot free. 18

Id at 75.

19

Arti Dhar, ―U.N. Asks India to Repeal AFSPA‖ The Hindu, Mar. 31, 2013.

20

Special Correspondent, ―The time has come to withdraw Armed Forces Act‖ Tarigami, Feb.15, 2007; Shujaat Bukhari , ―Withdraw Armed Forces Act: PDP‖ The Hindu, Jul. 1, 2007; Special Correspondent, ―AFSPA must go, says Farooq‖ The Hindu, Nov. 1, 2011; Special Correspondent, ―AFSPA withdrawal needed‖ The Hindu, Sept. 15, 2010; Staff Reporter, ―PUCL stages demonstration‖ The Hindu, May 23, 2011; AFSPA row, ―Omar meets Antony, set to take battle to Prime Minister‘s doorstep‖ NDTV India, Nov. 13, 2011; Nitin Gokhale & Zafar Iqbal, ―AFSPA row: ‗No is not an option‘ says Omar to Army‖ NDTV India, Nov. 10, 2011; ET Bureau, ―Repeal Armed Forces Special Powers Act‖ The Economic Times, Nov. 4, 2011.

21

―Logic, Not Emotion: Omar‖ The Hindu, Dec. 6, 2011.

22

Special Correspondent, ―Advani opposes withdrawal of AFSPA‖ The Hindu, Nov. 17, 2011; Shujaat Bukhari, ―Resume substantive talks: Mufti‖ The Hindu, Apr. 23, 2010.

23

Rajat Pandit, ―Under Siege: 20 yrs of AFSPA in J&K‖ Times of India, June 13, 2010.

24

Legal Correspondent, ―Pathribal encounter is cold-blooded murder, CBI tells court‖ The Hindu, Mar. 20, 2013.

25

Ishfaq Tantri, ―Machil Fake encounter case‖ The Daily Rising Kashmir, Mar. 26, 2013.


NILS Law Review

November, 2014

Vol. 1

In a move to make the AFSPA humane, the Armed Forces (Special Powers) Amendment Bill, 201126 was introduced by a Private member in the Parliament. It amends Section 6 and Section 7 of the AFSPA 1958 and AFSPA 1990 respectively, by stating that no prosecution, suit or other legal proceedings shall be instituted, unless the Central Government furnishes reasons in writing for justifying the action and the competent court upholds the legal validity of these reasons. The amendment addresses the problem raised by the ―good faith‖ provision; however the prevailing demand for repeal of the Act will not attenuate even after an Amendment of the Act. Testing the Act on the scale of Fundamental Rights in India In monitoring India‘s human rights record, the Human Rights Committee in 1997 had expressed concern over the AFSPA. The committee favoured a political approach to problems with means that are compatible with the covenant. On the prolonged status of some areas as ‗disturbed areas‘ it observed that ‗the State party is in effect using emergency powers without resorting to article 4, paragraph 3, of the Covenant.‘27 This comment on India‘s record indicates the gulf between precept and practice and between how India‘s record is perceived by others and by itself. India recognizes the situation in ‗disturbed areas‘ as internal security issues but not as internal conflicts. These do not warrant imposition of emergency.28 Nevertheless, they are of sufficient intensity to require employment of the military. Any infringements of human rights that take place are meant to bring the situation back to normal at the earliest and protect the civilian population from the effects of violence. Prohibitory orders that curtail rights are usually in place. Powers under the AFSPA, under Section 4 (a), have a bearing on ‗hard core‘ rights, such as right to life. This is why the AFSPA has come under criticism on two counts. One is that the Act is a ‗colourable‘ legislation, giving emergency powers without proclaiming emergency. 29 Second is that the extensive power to take life violates international obligations and Article 14. Since the 26

Bill XI of 2011

27

―Concluding Observations of the Human Rights Committee: India 08/04/1997‘, CCPR/C/79/Add.81 (Concluding Observations/Comments) August 4, 1997, Available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.79.Add.81.En?OpenDocument (Visited on April 2, 2013).

28

The Punchhi committee report on Centre-State relations has envisaged a category of ‗local emergency‘ to cover internal disturbances type situations in its report of April 2010.

29

This was ruled out by the apex court in its 1997 judgment.


NILS Law Review

November, 2014

Vol. 1

Supreme Court has ruled on the validity of the Act and its powers are not arbitrary, correspondence between the AFSPA and human rights law needs to be brought about by a special emphasis on the ‗Do‘s and Don‘ts‘. The Supreme Court had required that violations be taken as violation of the Army Act 1950. The original list was upgraded after the judgment.30 Further Under section 4(a) of the AFSPA, which grants armed forces personnel the power to shoot to kill, the constitutional right to life is violated. This law is not fair, just or reasonable because it allows the armed forces to use an excessive amount of force. The offenses under section 4(a) are: "acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or fire-arms, ammunition or explosive substances". None of these offences necessarily involve the use of force. The armed forces are thus allowed to retaliate with powers which are grossly out of proportion with the offence.31 In the milieu of Article 22(2)32 of the Constitution of India, it is imperative to point out that under the AFSPA, the use of "least possible delay" language has allowed the security forces to hold people for days and months at a time. A few habeas corpus cases in which the court did find the delay to be excessive are indicative of the abuses which are occurring in practice. It should be noted that habeas corpus cases are only filed for those who have access to lawyers and the court. In all the seven states of the North East only the Guwahati High Court bench in Assam can hear habeas corpus cases. So although in the two following cases the time of delay in handing over the arrested person was found excessive, it can only be imagined what types of abuses occur in the states of Manipur and Nagaland where the people do not have access to the court. In Nungshitombi Devi v. Rishang Keishang, CM Manipur,33 the petitioner's husband was arrested by CRPF on January 10, 1981, and was still missing on February 22, 1981. He had been arrested 30

It is available as Appendix C in the Indian Army Doctrine for Sub Conventional Operations, Shimla: HQ ARTRAC, 2006, pp. 68-74.

31

Thus, compromising with the Right to Life under Article 21 of the constitution.

32

Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

33

(1982) 1 GLR 756.


NILS Law Review

November, 2014

Vol. 1

under AFSPA Section 4(c). The court found this delay to have been too long and unjustified, even under Section 5 of the AFSPA. In Civil Liberties Organisation (CLAHRO) v. PL Kukrety,34 people arrested in Oinam were held for five days before being handed over to magistrates. Worsening of Situation due to Federal Tussle Ever since 2009, Chief Minister Omar Abdullah has been advocating the withdrawal of the controversial Armed Forces Special Powers Act from parts of the State, as a first step towards an incremental rollback of the Army's presence in civilian-inhabited areas — a source of everyday friction with civilians. Even though Union Home Minister P. Chidambaram has backed the idea, and a report by three government interlocutors has endorsed it, New Delhi has proved unwilling to act, in part because of bitter resistance by the Indian Army. Based on an analysis of central government data, this newspaper reported on Friday that J&K was more peaceful than many ‗perfectly peaceful' States — among them, economically vibrant Haryana. In population-adjusted terms, violent deaths in J&K — those of terrorists and security force personnel, as well as murders of civilians, whether terrorism-related or otherwise — were at the same level as in Bihar, and not significantly higher than in Delhi. No one in New Delhi, though, wishes to be charged with overruling an assessment by the armed forces — an assessment which, regrettably, is driven more by fear than hard-headed strategic sense.35 These spurious arguments are being used to justify the status quo.36 In the tense times, Government of India justified the declaration by breakout of armed rebellion in J&K. The Parliament had the authority to exercise the functions of the J&K legislature under clause b of Article 356 (1). It thus passed the Armed Forces (Jammu and Kashmir) Special Powers Act whereby the armed forces were conferred special powers to deal with the situation in the state.37

34

(1988) 2 GLR 137.

35

Kashmir: Why AFSPA Must Go, available at: http://www.thehindu.com/opinion/editorial/article2577520.ece (Visited on April 8, 2014).

36

37

Id. Available at: http://www.kashmirlife.net/index.php?option=com_content&view=article&id=172:de-stingingafspa-de-stinging-afspa (Visited on April 3, 2014).


NILS Law Review

November, 2014

Vol. 1

With improvement in situation, experts say the state government can act within its right by withdrawing the notifications issued after imposition of president‘s rule in 1990. But, this proposition draws flake from the notion that there exists a big fallacy in the logical inference that since the State Government is competent to make declarations under the law, it would, therefore, have the power to resign such declarations: What if the Parliament was to make a declaration and the State Government then, subsequently, withdrew it? Would it not, then, amount to encroachment upon the Parliament‘s sovereignty and the violation of the Constitution? Under AFSPA, however, the armed forces enjoy these special powers only in areas which are declared as ―disturbed areas‖. The power to declare an area as disturbed vests in the governor of the state as has been laid down by Section 3 of the AFSPA. The Governor of J&K accordingly declared districts of Srinagar, Budgam, Anantnag, Pulwama, Baramulla, Kupwara, Jammu, Kathua, Udhampur, Poonch, Rajouri and Doda as disturbed by issuing notification SRO38 SW 4 on July 6, 1990 and later again through SRO 351 on August 10, 2001. Thus the conflict arises when the opinion of the central government and council of ministers in the state of J&K differs. There are voices against the process of appointment of Governor as he remains no more than the central government supervisor. Thus, giving such discretion to the Governor under Section 3 of the Act nullifies the notion of him working on the aid and advice of the council of ministers of state legislature. The issue is that such conflict leads us nowhere other than the political impasse which gives a death blow to all the calls arising out of legitimate expectations in the capacity of the citizens, by the citizens of a nation. Conclusions and Suggestions Recently Christof Heyns, UN's Special Rapporteur on extrajudicial, summary or arbitrary executions, told reporters that the AFSPA has become a "symbol of excessive state power" and "has no role to play in a democracy".39 Undoubtedly, the Act is met with stark opposition, locally

38

Statutory Rules and Orders.

39

Available at: http://www.ndtv.com/article/india/un-asks-india-to-repeal-armed-forces-special-powers-act-192249 (Visited on April 4, 2014). He further said, ―The AFSPA in effect allows the state to override rights in the disturbed areas in a much [more] intrusive way than would be the case under a state of emergency, since the right to life is in effect suspended, and this is done without the safeguards applicable to states of emergency,‖


NILS Law Review

November, 2014

Vol. 1

as well as internationally,40 as due to its implementation there have been gross violations of fundamental rights41 as well as the violation of Article 4 of the International Covenant on Civil and Political Rights (ICCPR) to which India is a signatory.42 Realizing the fact that J&K has immense potential to be an asset to our nation it is imperative to find out the solution to the stalemate as soon as possible because this is the only situation of stalemate where the irony of rampant violations of basic fundamental rights continue under the nose of all concerned. Following are some suggestions which if made effective immediately, can serve the purpose of striving towards prevalence of peace

Look at the citizens in J&K with an eye of sympathy rather than a political toy.

Instead of making things complicated to keep the hot burner on to fulfill ulterior motives it would be more prudent to constitute a high power committee to look into the validity of AFSPA, involving nominees from centre and state governments including the President and Governor. This committee need not come to a unanimous decision; rather a simple majority opinion within a specified period of time should be made final and binding.

It should be made clear in the constitution that the Governor has no discretionary power in the cases of notifying the disturbed areas. It has to be done in consultation with the Council of Ministers who represents the real will of the citizens there.

It is more appropriate to have more security on our borders rather than in our cities. Thus the forces can be deployed on the borders to check the infiltration.

Judicial enquiries are made mandatory in all cases of death at the hands of the security and armed forces and that the judges in such enquiries including those under the

40

―Generally J&K HC disposes off PIL against Arundhati Roy‖ The Hindu, Nov. 24, 2011.

41

Article 14, 19, 21, 22 & 25 of Indian Constitution. It has been suggested that the Act is unconstitutional as it stands against the privileges citizens of India enjoy against the State.

42

Armed Forces Special Powers Act: A study on National Security and Tyranny, available at: http://www.hrdc.net/sahrdc/resources/armed_forces.htm (Visited on Mar. 31, 2014).


NILS Law Review

November, 2014

Vol. 1

Commission of Enquiry Act of 1952, be empowered to direct prosecution of security and armed forces personnel.43

43

Report of the UN Human Rights Committee in 1997[CCPR/C/60/IND/3 â&#x20AC;&#x201C; August 1,1997, Geneva]


NILS Law Review

November, 2014

Vol. 1

Inter-Country Adoption: Leading to Compassionate Caring or Exploitation? Shatrunjay Bose1

Introduction Adoption can be defined as the statutory process of terminating a child‘s legal rights and duties towards the natural parents and substituting similar rights and duties towards adoptive parents. The institution of adoption establishes a parent child relationship between persons who are not related by blood or birth. Adoption creates a balance of both physical and psychological environment and for the couples who desire to become parents, gives them there chance.2 The custom of adoption has become international. The inter-country adoption can be defined as adoption of a child by a person of another country. Inter country adoption may be more viable choice than domestic adoption for many families especially those who want to adopt a healthy infant. Though inter country adoption has become quit regular thorough out the world, still there are many unfortunate incidents where there is misuse of adopted children as child labour or domestic cruelty. In many countries where domestic unrest is prevalent, many agencies use adoption to mask child trafficking.3 International Conventions At the international level attempts were made to legalize inter-country adoption through the rights of child resolution adopted by the United Nations General Assembly on 20 November, 1959. The resolution made provisions for protection of children adopted by citizen of another country. The Principle 9 of the said declaration clearly mentions that the child shall be protected

1

Student of IV Year, B.A.LL.B. at University of Petroleum and Energy Studies, Dehradun. Author can be contacted at shatrunjaybose@gmail.com 2

Souran Subha Ghosh. ‗Inter-Country Adoption procedure and Supreme Court Guidelines‘. Retrieved from www.legalservices.com 3

Kuljit Kaur. ‗Children: Inter Country Adoption In India‘. Selected Essays on Private International Law p. 191


NILS Law Review

November, 2014

Vol. 1

against all forms of neglect, cruelty and exploitation. He shall not be subject of traffic in any form. The historical development of the Hague convention can be framed as follows: THE

HAGUE

CONVENTION

ON

JURISDICTION,

APPLICABLE

LAW,

AND

RECOGNITION OF DECREES RELATING TO ADOPTION The Hague Convention on Jurisdiction, Applicable Law, and Recognition of Decrees Relating to Adoption (1965 Convention) sought to establish uniform jurisdictional rules to regulate consent and abandonment issues in inter country adoptions. This international agreement is yet to gain the support necessary to enter into force. While both in Austria and Switzerland have ratified the convention, an additional ratification is required before agreement will be binding. One possible explanation for hesitation displayed by member nations is that the 1965 Hague convention allows signatory nations to ignore any provision that clashes with any public policy. The Hague convention failed to harmonize the laws of foreign states since it contains exceptions, reservations and restrictions to satisfy nationalistic viewpoints to such an extent that its usefulness is questionable. Conflict may have arise from this convention were the sending nation declares that a child has been legally abandoned and then issues a foreign adoption decree, but the receiving nation‘s abandonment criteria have not been met. The child may end up legally adopted by foreign parents in the country of origin, but unable to immigrate to the adoptive parent‘s native country. Therefore standardized definitions of these terms are necessary in order to facilitate the intercounty adoption of orphaned children.4 The jurisdiction over the adoption is completely divested from the child‘s country of origin; even though that country may be better able determine if the adoption is in the child‘s best interest. The isolation of the child‘s country of origin appear contrary to the premise that the child‘s best interest is primary not the adoptive parents desire to have child.5

4

5

Romano Rosanne, ‗Intercountry Adoption: An overview for the Practitioner‘, 7 Transnational Law, p.545

Bisignaro Susan, ‗Intercountry adoptions today and the implications of the 1993 Hague Convention on tomorrow‘ 13 Dick J. International.,123 at 124


NILS Law Review

November, 2014

Vol. 1

1986 UN DECLARATION ON SOCIAL AND LEGAL PRINCIPLES RELATING TO THE PROTECTION AND WELFARE OF CHILDREN, WITH SPECIAL REFERENCE TO FOSTER PLACEMENT AND ADOPTION, NATIONALLY, AND INTERNATIONALLY. The United Nations Declaration‘s twenty-four Articles address issues pertaining to family and child welfare, foster care, and domestic problems, as well as concerns regarding inter country adoption that were left unaddressed by other international agreements. Like the 1965 Hague Convention, the declaration has been criticized in its treatment of inter country adoptions. The primary criticisms are three fold. a) The declaration depicts inter country adoption as declaration as alast resort for children who cannot be placed in adoptive or foster homes within the child‘s country of origin to an inter country adoption. b) The declarations attempt to standardize the inter country adoption process has failed, in part due to the ambiguity of its principles. The declaration states that competent authorities or agencies should make inter country adoption placement decision, yet it fails to define competent within this context. c) The article 20 disallows improper financial gain as result of the placement decision the declaration is devoid of guidelines defining what constitutes improper financial adoption. This provision presumes that all nations that participate in inter country adoptions have developed appropriate safeguards and standards for their domestic placements. 1989 UN CONVENTION ON THE RIGHTS OF THE CHILD A more recent instrument pertaining to inter country adoptions was unanimously approved by the United Nations in November 1989. It acknowledges a wide variety of children‘s rights such as those pertaining to civil, political, economic, social, and cultural issues. While over 150 nations have ratified the convention, the US has yet to send the treaty to congress for its approval.6

6

Supra note 3.


NILS Law Review

November, 2014

Vol. 1

However the UN conventions ability to control international trafficking of infants became suspect following the tragedy in Romania. Although article 35 of the UN convention provides that measures must be taken to prevent abduction of sale, the sale of, or traffic in children for any purpose or in any form, it lacks significant force because it relies on national laws to provide the specific legal measures. Art 20 stresses the desire to continue a child‘s upbringing, especially their ethnic, religious, or linguistic background.7 Article 21(b) recognizes inter country adoption as an alternative method of childcare, when appropriate.8 Another problem to achieve a unified system of inter-country adoption is that the UN convention is supplementary in nature. As such, adherence to the provisions is not mandatory; leaving countries the option to substitute their own laws where they feel the child‘s best interest would be better served. Without mandatory guidelines for all countries, the possibilities for confusion and corruption remains and the best interest of the child may get neglected.9 THE HAGUE CONVENTION OF 29 MAY 1993 ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTER-COUNTRY ADOPTION The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Inter-Country Adoption was developed to establish safeguards which ensure that InterCountry adoptions take place in the best interests of the child and with respect for the child‘s fundamental rights.

7

UN convention article 20, which states that ‗a child temporarily or permanently deprived of his or her family environment, or in whose best interests cannot be allowed to remain in that environment, shall be entitled protection and assistance provided by the state‘. Article 20 furthers states that ‗due regard shall be paid to the desirability of continuity in a child‘s upbringing and to the child‘s ethnic, religious, cultural and linguistic background.‘ 8

UN convention, article 21(b)which states that Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin 9

Supra note 4.


NILS Law Review

November, 2014

Vol. 1

The Hague Convention of 1993 recognizes that â&#x20AC;&#x2014;growing up in a family is of primary importance and is essential for the happiness and healthy development of the childâ&#x20AC;&#x2DC;. This convention also recognizes Inter-Country adoption and provides the advantage of a permanent family to a child for whom a suitable family could not be found in his or her country of origin. It sets out clear procedures for adoption and prohibits illegal financial gain. It also provides greater security, predictability and transparency for all the people involved in the process of adoption. The Convention establishes a system of co-operation between authorities in countries of origin and receiving countries, which were designed to ensure that Inter-Country adoption takes place under conditions which help to guarantee the best adoption practices and elimination of abuses. The 1993 Hague Convention gives effect to Article 21 of the United Nations Convention on the Rights of the Child by adding substantive safeguards and procedures to the broad principles and norms laid down in the Convention on the Rights of the Child. The Convention makes clear that receiving States and States of origin must share the burdens and benefits of regulating Inter-Country adoptions. It sets out clearly which functions within the adoption process are to be performed by each State. The Principal features constituted in the Hague Convention are:10 a) The best interests of the child are paramount The Convention contains certain rules to ensure that adoptions take place in the best interests of the child and with respect for his or her fundamental rights. For example, States must: consider national solutions first (implement the principle of subsidiary); ensure the child is adoptable; preserve information about the child and his / her parents; evaluate thoroughly the prospective adoptive parents; match the child with a suitable family; impose additional safeguards where needed. This fundamental principle of the child's best interests should guide the development of

10

Outline of the Hague Intercountry Adoption Convention, Hague Convention on Private International Law. Retrieved from www.hcch.net


NILS Law Review

November, 2014

Vol. 1

an integrated national child care and protection system.11 If Inter-Country adoption is needed as part of such a national child care system, it must be ethical and child-centered. b) The principle of Subsidiarity â&#x20AC;&#x2022;Subsidiarityâ&#x20AC;&#x2013; in the Convention implies to the Contracting States recognizing that a child should be raised by his or her birth family or extended family whenever possible. If that is not impossible to achieve then other forms of permanent care in the State of origin should be considered. After considering all the advantages and disadvantages if the within the state adoption is not feasible then Inter-Country adoption be considered but only if it is in the childâ&#x20AC;&#x2DC;s best interests. As a general rule, institutional care should be considered as a last resort for a child in need of a family. c) Safeguards to protect children from abduction, sale and trafficking States should establish safeguards to prevent abduction, sale and trafficking in children for adoption by: protecting birth families from exploitation and undue pressure; ensuring only children in need of a family are adoptable and adopted; preventing improper financial gain and corruption; regulating agencies and individuals involved in adoptions by accrediting them in accordance with Convention standards. d) Co-operation between States and within States The Convention envisages a system in which all Contracting States work together to ensure the protection of children. Co-operation between Contracting States is essential to ensure the effectiveness of any safeguards put in place.12 In practice, this principle is implemented through international co-operation between Central Authorities, and between other public authorities and accredited bodies performing the functions of Central Authorities13, through intra-State co-operation between authorities and agencies 11

Hague convention article 1(a) states that to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law. 12

Hague convention article 1(b) states that to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children 13

Hague Convention (Art. 7) on inter-state cooperation.


NILS Law Review

November, 2014

Vol. 1

regarding Convention procedures14,through co-operation to prevent abuses and avoidance of the Convention.15 e) Automatic recognition of adoption decisions The 1993 Hague Convention achieved a major breakthrough in establishing a system of automatic recognition of adoptions made in accordance with the Convention. Every adoption, whether a simple or full adoption, which is certified to be made in accordance with Convention procedures, is recognized â&#x20AC;&#x2014;by operation of lawâ&#x20AC;&#x2DC; in all other Contracting States.16 f) Competent authorities, Central Authorities and accredited bodies The Convention requires that only competent authorities should perform Convention functions. Competent authorities may be Central Authorities, public authorities, including judicial or administrative authorities, and accredited bodies. The Convention provides for a system of Central Authorities in all Contracting States and imposes certain general obligations on them, such as: co-operation with one another through the exchange of general information concerning Inter-Country adoption; the elimination of any obstacles to the application of the Convention; 17a responsibility to deter all practices contrary to the objects of the Convention.18 Accredited bodies may perform some of the functions of Central Authorities. The process of accreditation of bodies is one of the Conventionâ&#x20AC;&#x2DC;s safeguards to protect children in adoption. Any private adoption body or agency must be accountable to a supervising or accrediting 14

Hague Convention article 7(1) states that Central Authorities shall co-operate with each other and promote cooperation amongst the competent authorities in their States to protect children and to achieve the other objects of the Convention. 15

Hague Convention article 33 states that A competent authority which finds that any provision of the Convention has not been respected or that there is a serious risk that it may not be respected, shall immediately inform the Central Authority of its State. This Central Authority shall be responsible for ensuring that appropriate measures are taken. 16

Article 23 of the Hague Convention.

17

Hague convention, article 7{2(b)} states that they shall take directly all appropriate measures to keep one another informed about the operation of the Convention and, as far as possible, eliminate any obstacles to its application. 18

Hague Convention, article 8 states that Central Authorities shall take, directly or through public authorities, all appropriate measures to prevent improper financial or other gain in connection with an adoption and to deter all practices contrary to the objects of the Convention.


NILS Law Review

November, 2014

Vol. 1

authority.19They must play an effective role in upholding the principles of the Convention and preventing illegal and improper practices in adoption. If accredited bodies are to be used, the Convention sets out a regulatory framework of minimum standards for their operation in Articles.20 g) The Inter-Country Adoption Technical Assistance Program (ICATAP) The ICATAP has undertaken the responsibility of reviewing and monitoring the 1993 Hague Conventionâ&#x20AC;&#x2DC;s practical operation, which includes promotional activities, and provides regular advice and support to requesting countries. ICATAP is operated directly by the Permanent Bureau, as well as in co-operation with international consultants and experts, and international organizations such as UNICEF. The Hague approach takes full account of the need to integrate the Inter-Country adoption process within the broader child care and protection system. The works done by the ICATAP are: i.

Assisting countries in developing and in reviewing implementation legislation and regulations;

ii.

To provide advises on the creations and functions of Central Authorities and other competent authorities.

iii.

To provide training and other operational assistance to authorities and other relevant actors;

iv.

To providing information and advice to States considering ratification or accession to assist their decision making and other factors relevant to effective implementation. Points In Favour of Inter-Country Adoption

Inter-Country adoption can be viewed as a humanitarian or philanthropic work towards the impoverished children and parentless children of developing and under developing nations who do not have the medium to ensure that their basic human rights are not violated in the place of their birth. The contentions that can be made in favour of inter-country adoption are: 19

Hague convention, see article 6 to 13.

20

Hague convention, see article 10,12,32.


NILS Law Review

November, 2014

Vol. 1

a) Adoption between countries can be viewed asserving the most fundamental human rights of the most helpless humans, by providing children with love and care, which will promote growth and development of a healthy and fulfilling life.21 b) It can also be perceived as a humanitarian act that transfers a child from extreme poverty and its vulnerabilities and limitations, to the wealth, comfort, and opportunities of the developed world.22 c) The countries sending a child for adoption lacks orphanage and foster care facilities, children abandoned, killed, left in dismal orphanages, or living on the streets bear horrific testimony to the pressing need for adoption.23 Also in the sending countries as the foster care and social services are not enough for the orphan children therefore, overwhelmingly the homeless children of the world are living and dying in poor orphanages and on the streets.24 According to International Labour Organization, the children of the poor in developing nations are highly vulnerable to many evils of the suppressed society like child labour, debt bondage, child prostitution, and child trafficking.25Subsequently the convention for inter-country adoption maintains the chain of this type of adoption by providing significant funds for poor orphanages in sending countries.26

21

Elizabeth Bartholet, International Adoption: Thoughts on the Human Rights Issues, Harvard Law School Faculty Scholarship Series: Paper 21. Harvard Law School (September 5, 2008).p.152. 22

David M. Smolin, Intercountry Adoption and Poverty: A Human Rights Analysis, Capital University Law

Review, Vol. 36, (2007). 23

David M. Smolin, Intercountry Adoption as Child Trafficking, Valparaiso Law Review, Vol. 39, No. 2, 281, 325

(2005). 24

25

Supra note 20.p.181. Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms

of Child Labour, November, 2000, ILO Convention No. 182. 26

Supra note 20.


NILS Law Review

November, 2014

Vol. 1

Points against Inter-Country Adoption There are many points which go against the system of Inter country Adoption. People related to the system of inter-country adoption have spoken regarding current system and practices. a) According to many, the sale of the poor and vulnerable children belonging to impoverished families to the citizens of prosperous nations is completely incorrect and unjustified.27 b) The rights of the adopted children and the biological family are not brought into consideration; instead it serves the interest of the adults who want to become parents.28Therefore it can be said that that children are best served by enjoying their racial, ethnic, and culture by remaining in their community of origin.29 c) Sometimes, in the hands of adoptive parents in a foreign country, inter-country adoption can also lead to identity crises among the adopted children thus make them potential targets of ethnic, racial, and other forms of discrimination.30This discussion has also been in the broader context of trans-racial adoption and the power struggle between racial groups in the United States of America.31 d) Inter-country adoption can only benefit a small portion of needy children and not all as it is a partial solution for helping a developing country.32Also funds for providing homes can also be given for the development of poor families in the sending countries.33

27

Twila L. Perry, Transracial Adoption and Gentrification: An Essay on Race, Power, Family, and Community, Third World Law Journal (2006). 28

Supra note 20.p.152.

29

Supra note 26.

30

Supra note 21.

31

Supra note 26.

32

Supra note 22.

33

Pamela A. Quiroz, Color-blind Individualism, Intercountry Adoption and Public Policy, Journal of

Sociology & Social Welfare, Vol. 34, no. 2 (2007).


NILS Law Review

November, 2014

Vol. 1

e) A large amount of the allocated funds are thought to be pocketed by adoption intermediaries and orphanage bureaucrats.34 This creates binding force on the sending countries to continue the inter-country adoption, and reduces the funds for the development of social welfare institutions in order to support biological parents. Therefore, people with real philanthropic intentions for suffering children in developing nations should 35provide assistance and help to children within their own societies, rather than spending inordinate sums to strip children of their national identity, native culture, and language. f) There are many other evil challenges to conquer in this system which are incidents of illicit child trafficking, and abusive environments for adopted children prominent and frequent.36 Challenges in the system of Inter-Country Adoption37 The inter-country adoption as an international law is facing lot of challenges. a) The issue of moral, ethical, and accordingly legal justification of Inter-Country adoption i.e. when, why and how is it appropriate, if not necessary, to utilize inter-country adoption to assure a childâ&#x20AC;&#x2DC;s right to live. b) How can international law function as a mechanism to ensure that legitimate adoptive practices to not degenerate into illicit child traffic for abusive purposes? Through an examination of the relevant existing laws this analysis will identify areas of concern and detriment in current international law as it attempts to effectively address all the aforementioned concerns.

34

David M. Smolin, Child Laundering: How the Intercountry Adoption System Legitimizes and Incentivizes

the Practices of Buying, Trafficking, Kidnapping, and Stealing Children, Wayne Law Review, Vol. 52, No. 1, 113, 200 (2006). 35

36

37

Supra note 22 .p.283. Human Rights Watch, 2004, Report on status of International Adoption; Comparitive Report, No. 6236. Scott Christian, Intercountry adoption, The University for Peace Law Review, vol 1:52


NILS Law Review

November, 2014

Vol. 1

Inter-Country Adoption Laws in India The Preamble of the Constitution of India pledges to secure to all citizens including children justice- economic, social and political. The constitution not only guarantees a child a wide range of fundamental rights at par with adult citizens but also empowers the state to make special provisions for children. Article 21A guarantees the right to elementary education to all. Article 39 specifically requires the state to direct its policy towards securing the following principles with respect to children: a) To protect tender age of children and to ensure that they are not forced by economic necessity to enter avocations unsuited to their age or strength b) That, children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that the childhood and youth are protected against exploitation and against moral and material abandonment. The first priority for a child is to be cared for by his/her parents. But when care by the childâ&#x20AC;&#x2DC;s own parents is unavailable, adoption may be an appropriate means for the care of child and his overall development. In India adoption of child among Hindus has its roots in spiritual and temporal facts as the adopted son to offer pindas in the manner of an aurasa son.38 The concept of Inter-Country adoption is new in India and it is still not the top priority of the legislators. There are no particular statutes for the rules regarding inter-country adoption. In 1984 the supreme court of India in a landmark case Laxmikant Pandey v Union of India,39 laid down few principles governing the rules for inter country adoption. The court asserted in eighth paragraph of the judgment: â&#x20AC;&#x153;While supporting Inter-Country adoption, it is necessary to bear in mind that the primary object of giving the child in adoption being the welfare of the people, great care has to be exercised in permitting the child to be given in adoption to foreign parents, lest the child may be neglected or abandoned by the adoptive parents in the foreign country or the adoptive parents may not be able to provide to the child a life of moral and material security or the child may be 38

39

B.C. Nirmal, Inter-country Adoption: Law and Policy in India, selected essays on Private International Law.p147. AIR 1984 SC 469: Cr LR (SC) 127: (1984) 2 SCC 244.


NILS Law Review

November, 2014

Vol. 1

subjected to moral and sexual abuse or forced labour or experimentation for medical or other research and may be placed in worse situation than in his own country.” Another important rule framed by the court during the course of judgment was: “Since there is no statutory enactment in our country providing for adoption of a child by foreign parents or laying down the procedures, which must be followed in such case, resort had to be taken to the provisions of guardian and wards act, 1890 for the purpose of felicitating such adoption”. Following the judgment, the Indian courts gradually broadened the scope of adopting child to other countries. In later judgments, the courts have also interpreted the word ‗custody‘ to make adoption easier. The Bombay high court in re Jay Kevin Salerno40 reiterated that: “When the custody of a child is with an institution, the child is kept in a private nursing home or with private party for better individual care of the child, it does not mean thaty the institution ceases to have the custody of the child.” In Karnataka State Council for Child Welfare v Society of Sisters of Charity St. Gerosa Convent,41 the validity of adoptions was challenged as the same was given to foreign parents in violation of the guidelines. The Supreme Court held the guidelines should have been followed, but it opined that, since the children were already abroad and were doing well, the nonobservance of the guidelines could not be ground to open the matter and cancel the adoptions. In the absence of any legislation, the Supreme Court has played an important in regulating the adoption of infants by foreign parents. Various international guidelines and Indian culture have been taken into consideration to frame the rules.

40

AIR 1988 Bom 139

41

AIR 1994 SC 658: 1993 AIR SCW 4069: (1995) supp 4 SCC 529.


NILS Law Review

November, 2014

Vol. 1

But the appointment of guardian should also be taken into consideration which is very important because if care is not taken in selecting the parents then it may lead to trafficking in children. It must be stated in this respect that the provisions of guardian and ward act, 1890, are applicable in case of inter country adoption. Section 7, of the said act provides that when the district court is satisfied the appointment of the guardian will be for the welfare of the minor, it appoints one. The foreign parents desirous of making the adoption of an Indian child make an application to the court for being appointed guardian of the person and property of the child whom he wishes to take in adoption and on being appointed the guardian, for leave of the court to take the child with him to his country for taking him/her in adoption. In January 2011, India implemented new procedures to provide more centralized processing of Inter-Country adoptions. In addition to the new guidelines, prospective adoptive parents should be aware of all Indian laws that apply to Inter-Country adoption. A child can be legally placed with the prospective adoptive parents under the Hindu Adoption and Maintenance Act of 1956 (HAMA), the Guardians and Wards Act of 1890 (GAWA), or the Juvenile Justice (Care and Protection of Children) Act of 2000 (JJA).42 Parents who have the willingness to adopt from India should meet the following criteria: a) Residency: There are no residency requirements. However, some Recognized Indian Placement Agencies (RIPAs) may ask prospective adoptive parents to reside with the child for seven days before departure from India. b) Age of Adopting Parents: Prospective adoptive parents should be at least 25 years of age and no more than 50 years of age if adopting a child age three or younger. Married couples may not have a combined age of more than 90 years. These provisions may be relaxed in exceptional cases, such as the adoption of older children, siblings, and children with special needs. Neither of the prospective adoptive parents, however, can be older than 50 years. If adopting a child older than three years of age, the prospective adoptive parents should be at least 25 and no more than 55 years of age. Single prospective adoptive parents must be more than 30 and less than 50 years of age.

42

Retrieved from http://adoption.state.gov/country_information/country_specific_info.php?country-select=india -/


NILS Law Review

November, 2014

Vol. 1

c) Marriage: A married couple must be in a stable relationship for at least five years. Same-sex couples are not eligible to adopt in India. d) Income: Adoptive parents should submit the required document to prove that they are financially stable to support the adopted child. e) Other requirements: A second adoption from India will be considered only after the legal adoption of the first child is completed, except in the case of siblings adopted at the same time. A single male is not permitted to adopt a female child. f) Medical certificate: Prospective adoptive parents must be free from any contagious or terminal disease or any mental or physical condition that may prevent them from taking care of the child. A medical certificate proving it should be submitted attested by a licensed medical practitioner. Eligibility Criteria for a Child for Being Adopted in India: a) Relinquishment and Abandonment: The Regional Child Welfare Committees (CWCs) determines whether a child has been relinquished or abandoned for adoption purposes and it should be mentioned to the adoptive parents. b) Age of adoption: It is generally preferable that child should be adopted before he/she attains the age of 3 but children up to 18 years of age are also eligible. c) Sibling Adoptions: Sibling adoptions are encouraged. The maximum age limit for Inter-Country adoption may be waived if the CWC approves. d) Special Needs or Medical Conditions: the Central Adoption Resource Agency (CARA) reviews the home and the family adopting the child to ensure that they are equipped to provide appropriate care for the child if the child has any particular ailment. e) Waiting Period or Foster Care: Prospective adoptive parents can foster a child with permission from the RIPA and after they obtain a â&#x20AC;&#x2022;No Objection Certificateâ&#x20AC;&#x2013; from CARA. Conclusive Recommendations A huge challenge remains to prove that if international adoption is a boon or bane. The thinking of the current generation of this world is divided between the people who say that the aim of the inter-country adoption is to facilitate the placement of children in need of homes, and those who


NILS Law Review

November, 2014

Vol. 1

argue say that international adoptions should be stopped in order to exploitation of these children, their parents, and their countries who are involved in the process. However, when we check the reality status of the situation, the lives of children are a concerning situation and there are many policies that need to be reformed. Large numbers of children in the poorer nations live in malice and miserable situation. Many of these children who reside in orphanages spend their infancy in an inhuman upbringing. They are deprived of the human touch as they grow up, those who survive physically are unlikely to develop emotionally and mentally in ways that will make it possible for them to relate meaningfully and happily to other human beings, or to learn or work in meaningful ways. The longer they spend in such orphanages, the less chance they will have at anything resembling normal development. By contrast, those placed in international adoption flourish. Those placed in infancy will do essentially as well as other children in their new country. The reformists and policy makers need to genuinely commit themselves to improve the lives of these deprived children, they should hear out the concerns expressed and arguments given from on both sides of the international adoption. Most countries have no adequate system for identifying children in need of adoptive homes and freeing them up from their biological parents so that they can be placed. Law reform efforts need to focus on creating systems for identifying and freeing up children who have been effectively permanently abandoned, and they need to create realistic methods of expediting the process, so that children are placed in adoptive homes as early in life as possible. Law makers also need to consider and address problems in the system of adoption like babybuying and kidnapping and take as threats that exist in the international adoption world. People who are against International adoptions are correct in arguing that this system can never provide homes for all the children in need, and that the problems of poverty and injustice that result in children being abandoned in large numbers in the poor countries of the world should attended primarily. But Inter-Country adoption is creating a worldwide awareness that there are challenges faced by poor countries which are forcing them to give their children away for adoption. Adoptive parents and their governments are becoming more aware of the problems of the countries from which international adoptees come by virtue of the adoption process.


NILS Law Review

November, 2014

Vol. 1

In India though there are authorities to check inter-country adoption but an act or statute to ensure it is also required. India the main concern is the religion specific adoption. In India only Hindus can adopt legally and other communities can only act as guardians not parents. The law in India is more of a parent-oriented rather than being child-oriented.43 This law is completely deteriorating the meaning of a uniform civil code. The article 44 of the constitution says that the state shall Endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India. In the current scenario of India, many attempts have been made to formulate a general law on adoption but all the steps have failed. The adoption of children Bill 1972 was not approved as the Muslims opposed it. The Adoption of Children bill 1980 was proposed and it aimed to provide a law to be made applicable for all communities sans the Muslim community. But this bill was opposed by the Bombay Zoroastrian Jashan Committee. The national adoption bill was twice in parliament in the seventies but was not formulated as a statute. Therefore a common forum is required to be instituted where this problem can be discussed and parties opposing it can be convinced that adoption is not a bad thing but it is giving a proper life and nourishment to a deprived child.

43

Cynthia Rodrigues: Adoption: giving children a chance, retrieved from www.womenexcel.com


NILS Law Review

November, 2014

Vol. 1

Nuclear Weaponry and Popular Culture: A Humanitarian Analysis of RAFAEL’s Nuclear Arms Promotional Video in India Pooja Shankar1

Introduction The defence industry of Israel is a strategically imperative sector. Israel has been globally recognized as one of the leading dealers of nuclear weaponry. RAFAEL is one of the top arms-producing and military service companies in the world. Rafael creates some of the most advanced artilleries and technologies, acclimatising them to Middle Eastern environments. It researches, explores and examines warfare weaponry systems and helps the Israel Defence Forces (IDF) detect and define its weapons-system requirements, along with providing quick IDF mandated solutions to problems regarding nuclear warfare and weaponry mechanisation. Similar to how domestic companies and businesses market their products to the public through competitive promotional schemes like advertisements; pricing strategies; etc., RAFAEL takes the liberty to market and promote its products to countries through equally ‗attractive‘ media, supposedly ―appealing to the interests of and building familiarity between the nations‖2 to which it conducts its promotional schemes.3 What this paper aims to do is analyse RAFAEL‘s video through an international legal perspective, touching upon topics concerning the constructivist theory, the issue of third worldism and its role in how developed nations perceive developing nations, the legitimization of nuclear warfare, and the prolonging debate of whether international law is really law. Further, the issue of humanitarian objections to the use of nuclear weaponry shall be addressed in detail to provide a basic outlook as to the casual disregard this video has displayed in the human rights sector.

1

Student of III Year, B.A.LL.B. (Hons.) at NALSAR University of Law, Hyderabad. Author can be contacted at poojashankr@gmail.com. 2

Stephen Trimble,Israel‟s Rafael goes Bollywood to make missile sales to India, THE DEW LINE, (last accessed 30 July, 2014)http://www.flightglobal.com/blogs/the-dewline/2009/03/israels-rafael-goes-bollywood/.

3

(Israeli nuclear arms advertisement) https://www.youtube.com/watch?v=ktQOLO4U5iQ.


NILS Law Review

November, 2014

Vol. 1

Eminent Jurists Supported Legal Analyses At their stall in the Aero India 2009 convention, RAFAEL displayed a Bollywood-style dance video fashioning Israeli artists in Bollywood styled costumes singing in English about the potential for the Indo-Israeli defence trade relationship. The true meaning behind the lyrics, which are in actuality no different from several songs in Bollywood today, would ordinarily not be so easily discernable had they not been explicitly displayed at the Israel stall at the Aero India 2009 in light of the potential defence trade liaison to be established between Israel and India. Through this video, we observe the internationally standard perceptions that countries like Israel have of India when determining promotional strategies that would appeal most to the country. But, India has not been the only subject of RAFAELâ&#x20AC;&#x2DC;s superficial marketing techniques. Countries like France, Brazil, Poland and England have also been subject to similar promotional videos by them. For France, the company has thematized its advertisement around Napolean and the French Renaissance; for Brazil, its theme is football; the theme for Poland was Chopin and Copernicus; and in England, it was about Shakespeare.4 It is literally as if RAFAEL has picked up the first things that came to their minds when thinking of these countries and subsequently legitimized the encouragement warfare through its persistence of the need for defence accompanied by relatable popular culture, revolutionary history, and country passions. But is there really anything wrong with the marketing this company endorses? Some may commend the fact that it finds themes of advertisement that appeal most to the consumer country so easily. Does this transnational recognition seep into the minds of the domestics, thus causing them to think of India as nothing more than the land of films and choreographed and synchronized dance numbers? Or is this thought process the cause of this international discernment of what India is truly about? These are questions we tend to ask ourselves, which we can answer utilising the theory of constructivism. Constructivism helps explain how international law exists and influences behaviour of States. It also exhibits how international law can help appraise a greater appreciation for the different roles of various norms in international society. Constructivist work emphases upon the development of social norms through social interaction, and also focuses on the conduits through which they have come to

4

Saurabh Joshi, Rafaelâ&#x20AC;&#x;s innovative video marketing for India, STRATPOST, (last accessed 31 July, 2014)http://www.stratpost.com/rafaels-innovative-video-marketing-for-india.


NILS Law Review

November, 2014

Vol. 1

influence actors.5 Karl Deutsch emphasised how identities of international actors are largely created through communicative action.6 When determining the identities of these international actors, constructivists take a State‘s practice into consideration, i.e., what actors actually do and do not do. And identities of States do not constantly shift, which results in their comforts remaining relatively consistent, which therefore allows for predictability of States with regard to their actions and interests.7Thus, we may observe that Israel‘s perception of India utilises this constructivist approach in its understanding of India as a State. Through communication, social interaction and consideration of the Indian way of life, Israel has come to the conclusion that the identity best associated with India is the film industry. It is something majority of the population appreciates, relates to and is reasonably passionate about. And this same theory is applicable to the other countries Israel has advertised its products to. An identity of a State is thus essentially created by what other States believe the State actors and the populace indulge in and hold close to their hearts. Some may deem it to be slightly disappointing that what the international community believes India is best associated with is its film industry, rather than its rich history, heritage and culture. But, perhaps India is partly responsible for the creation of this kind of image. Their universally presumed fixation with Bollywood, along with the extent of popularity this particular industry has all over the world, has neatly created this kind of perception of the country, which makes RAFAEL‘s advertisement genuinely acceptable in its eyes. Here, we may also acknowledge the issue of third worldism and how developed nations, like Israel, perceive developing nations, like India and how people have created a distinct division between them while characterizing them as completely different units with different features and ways of life. First world nations conveniently discard the more impactful elements of a country and replace them with something as trivial as popular culture. Other than India‘s gross population and film industry, first worlds have a difficult time acknowledging the true worth of these nations, which seems to be displayed in the advertisement video. Baxi 5

Jonathan Cristol, Constructivism,OXFORD BIBLIOGRAPHIES, (last accessed 31 July, 2014)http://www.oxfordbibliographies.com/view/document/obo-9780199743292/obo9780199743292-0061.xml.

6

Jutta Brunnee, Stephen J. Toope, Constructivism and International Law: Elements of an interactional Theory of International Law, in Jeffrey L. Dunoff and Mark A. Pollack, eds., INTERDISCIPLINARY PERSPECTIVES ON INTERNATIONAL LAW AND INTERNATIONAL RELATIONS: THE STATE OF THE ART (Cambridge University Press, December 2012).

7

Ibid.


NILS Law Review

November, 2014

Vol. 1

addresses this problem in his article and speaks about the problem of this conception of third worlds that the first worlds have conveniently created utilising the circumstances of colonial subjugation and societies subject to external domination.8 The problem with this conception of third worlds is that their personal histories are discarded and a universal presumption as to their way of life is concocted. Each country has its own voice and its own history, filled with rich culture, heritage and economic progression. However, these voices are viciously overpowered by the first worlds, whose voices are thought to be the only voices that matter. Further, Baxi believes that this conception of third worlds is inherently flawed due to the fact that such a distinct categorisation cannot simplistically be drawn without acknowledging that certain elements of each world exist within each other.9 We see the first world within the third world, which is represented by the rich upper class that favours industrial progress and infringement of human rights in the conquest of the same. And then we see the third world within the first, which is represented by the lower working classes and those who can barely earn enough for their survival, trapped in either unemployment or menial labour. However, contentious perceptions are not the only problems in these advertisements. What RAFAEL is essentially doing is encouraging the trade and utilisation of nuclear weaponry through advertisements encircling activities and elements of a country that the citizens are personally and particularly attached to. It is easy to display such harmless activities that a nation prides itself in and associate it with something as socially detrimental as nuclear weaponry. But, this not only legitimizes the use of nuclear armaments, but brings it to the same platform as something as innocuous as sports, films, and simultaneously, something as ground-breaking as historical revolutions. This is problematic, because not only does this display the trivialization of such a major issue, but it also encourages the world to accept this form of thought. RAFAEL specializes in armaments trade within Israel and to foreign nations for the purpose of defence, but who is to regulate this kind of assumption? The ICJ Advisory Opinion on the legality of the threat or use of nuclear weapons developed in 1996 in response to the question of whether the threat of nuclear weapons under any instance in permitted under international

8

Upendra Baxi, What may the 'Third World' expect from international law?, 27 (5) THIRD WORLD QUARTERLY, pp. 713-725 (2006).

9

Ibid.


NILS Law Review

November, 2014

Vol. 1

law.10 Although the court stated that the threat or use of nuclear weapons would normally conflict with the rules of international law pertinent to situations of armed conflict, it could not definitively conclude whether this threat or use of nuclear weapons would be lawful or unlawful in extreme situations of self-defence, where the very existence of a State would be at risk. Thus, the court ultimately refused to declare nuclear weapons as illegal, though not concretely legalizing them, as well.11 This ambiguity in the international notion of nuclear weaponry has led to the universal validation of its usage to the extent that humorous advertisements may be created to help effect sales. There is nothing humorous about war, and the neglect of the ICJ to develop a firm stand on the status of nuclear arms has led to such disappointing endorsements. The RAFAEL video advertisement features an Israeli man and an ―Indian‖ woman singing to each other. The woman constantly articulates that she needs protection and defence, while informing the man that she believes in him. The man basically declares (lyrically and melodiously) that they have been together for quite long (as Indo-Israeli allies) and that in order to strengthen their relationship, the man must protect the woman (Israel‘s ingenious technique to persuade India that their ties as allies will be reinforced if India agrees to make Israel its defence equipment supplier – promotion of potential trade defence relationship), and reassures her that he will defend her, while reiterating the fact that she believes in him. This is perhaps an example of the way in which countries create excuses in order to render necessary the import and export nuclear arms. And with both India and Israel not being signatories to the Nuclear Non-Proliferation Treaty (NPT)12, there is all the more leeway for them to create such excuses and deem them publically acceptable. By not signing the NPT, they are not subject to obligations of disarmament, non-proliferation and peaceful use of nuclear weapons. Thus, Israel and India are free to engage in the unrestricted trade and spread of nuclear munitions, which other nations fear will result in the increased possibility of

10

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, International Court of Justice (ICJ), 8 July 1996,http://www.refworld.org/docid/4b2913d62.html (last accessed 31 July, 2014).

11

Ibid.

12

Nuclear Non-Proliferation Treaty, March 5, 1970.


NILS Law Review

November, 2014

Vol. 1

warfare, de-stabilization of international or regional relations, and infringement upon the sovereignty of states.13 These countries attempt to give the impression that the nuclear trade being advertised for is required for defence purposes, but who can actually ensure that this is the only circumstance in which these weapons will be used? This is where the question of enforcement comes into play, especially while considering the impacts of outlawing the usage of nuclear weapons had the ICJ taken a stand against it. Thus, we ask ourselves: is international law really law? There is no central governing and authoritative body as such to create sanctions, enforce international laws, and effectively penalize offenders. The positivist approach believes that domestic law is abided by because of efficient sanctions and enforcement mechanisms that force people to follow it. Basically, they believe that law is followed because it is law. H.L.A. Hart believes that international law is not law, as it lacks a legislature, a judiciary and an executive (and an effective enforcement mechanism like the police force). There is no single body that creates the law. Even the ICJ does not have compulsory jurisdiction. The fundamental basis of effective law has two elements: primary rules of obligation, which are available in every society; and change and adjudication, which the international legal system lacks. Thus, it cannot be deemed to be an operative regulatory system. 14However, this theory against international law being law exists only assuming States and individuals follow law simply because they are afraid of incurring the repercussions of breaking the law, i.e., that they are afraid of being punished. But, this is not always true. States and individuals may attach a moral understanding and appreciation for the law, thus preventing them from breaking it. They may understand that a certain act or practice is wrong to participate in, and thus, they are obligated by their moral and social responsibilities and commitments to not disobey the written word. However, issues of morality and social obligations may not be the real reason behind obeying international law. Just because there is no central sanctioning body, it does not mean that the international legal system is not a legal system. It may be a contributory cause, but perhaps the factual and ultimate motive behind following the law is convenience. States wish to engage in non-controversial and smooth relations with each other 13

ERIC KOPPE, The use of Nuclear Weapons and the Protection of the Environment during International Armed Conflict, 47 (ed. Oxford, Hart Publishing 2008) (2008).

14

Onuma Yasuaki, History of International Law as seen from a Transcivilization Perspective, 2 J. HIST. INTâ&#x20AC;&#x2DC;L. 1 5 (2000).


NILS Law Review

November, 2014

Vol. 1

in order to facilitate easier interactions between parties, and it often directly benefits a country to follow an existing law. There have been instances in history where States subordinate terms of an agreement between them to convenience of the moment. For example, in the Paquete Habana case,15 â&#x20AC;&#x2022;When Britain and France had formally stopped seizing each other's fishing vessels at the beginning of the nineteenth century, Britain proclaimed that this action was not created from an agreement, but from a simple concession and that this concession would always be subordinate to the convenience of the moment.â&#x20AC;&#x2013;16 When there is a participatory process, States may comply with it because it works in their favour. Only if there is cooperation between actors, there will be legitimate law. 17 Rosalyn Higgins attempts to counter all criticisms made against the idea of international law being law owing to the lack of a formal sanctioning authority. She iterates four broad propositions: law provides an operational system to achieve certain values that society puts up at a pedestal; law is not only about resolving disputes, which is a mere part of the legal system, but about creating a system that avoids disputes in the long run; dispute settlement mechanisms must be created; and finally, in case this fails, you need an alternative set of rules to provide for friendly relations between states, through peace-making forces, additional political mechanisms, etc.18 Further, she believes that the positivistic idea that law simply consists of rules to be applied impartially, which international law lacks due to the absence of an effective sanctioning authority, is inherently flawed. Indeed, international law is a continuing process that changes with circumstances, not merely frozen rules. Rules may be a part of what law is, but the essence of law lies in its ability to adjust to changing environmental circumstances and political ideologies.19For example: till the 1940s, individuals, companies, organisations and States as a whole participated in activities without acknowledging any potential consequences to the environment, assuming that it would rejuvenate itself. Then, in 15

The Paquete Habana, 175 U.S. 677 (1900).

16

Jack L. Goldsmith, Eric A. Posner, Understanding the Resemblance between Modern and Traditional International Customary Law, 40 VA. J. INTâ&#x20AC;&#x2DC;L. 639 4 (2000).

17

ROSALYN HIGGINS, Problems and Process: International Law and How We Use It, 13-16 (Clarendon Press, 1994) (1995).

18

Ibid.

19

Id.


NILS Law Review

November, 2014

Vol. 1

the 1950s, as technological advancement began taking place, people began discussing the concept of polluter pays.20 As science progressed in the 1980s, multinational companies began earning large amounts of revenue and the environmental detriments resulting from their increased production became irreversible and polluter pays were not enough to keep society in check. Hence, the precautionary principle21 was developed, further accompanied by the idea of environmental impact assessment, etc. This displays how rules and procedures of law can never be fixed, and must adapt to changing conditions of the world. International law consists of these requisites, and the mere lack of a formal sanctioning authority should not deem its legal value any less. Domestic law is a normative system vis Ă vis society that attempts to bring order and avoid chaos. So, how is international law any different? However, people remain apprehensive about this kind of theorization. Thus, the question of whether international law is law is still open to debate. And with such an ambiguous stance on the nature of these laws, who is to say that a ban on nuclear weapons would meritoriously be honoured and monitored? It is true that collective condemnation and morality play a role in the actions of States, but ultimately, it must be understood that they all work according to their own self-interests and whatever conveniences them the most. If it is convenient to trade in nuclear weaponry for the sake of strengthening inter-State relationships, then so be it (as Israel and India might believe). Nuclear Disarmament and Humanitarian Perspectives We know that States ultimately work towards their own self-interests, but there are always prolonging debates regarding the acceptance and position of nuclear weaponry in our world. For this reason, we must acknowledge some of the arguments put forth by fellow humanitarians. Nuclear disarmament is the act of reducing the use of nuclear weaponry with a goal to achieve a nuclear weapon-free world. There is so much to write on this one topic, but I will only be able to address a minute portion of the topic. Nuclear weaponry has proven to be

20

The 'polluters pays' principle is the commonly accepted practice that those who produce pollution should bear the costs of managing it to prevent damage to human health or the environment.

21

The Precautionary Principle is a guiding framework for decision-making that anticipates how our actions will affect the environment and health of future generations. Itstresses on public participation and stakeholder cooperation in long-term environmental health and ecological policies and programs.


NILS Law Review

November, 2014

Vol. 1

catastrophic to the world in many instances. The heart of a nuclear explosion reaches a temperature of several million degrees centigrade. The resulting heat flash literally vaporises all human tissue within a very wide radius. For example, at Hiroshima, within a radius of half a mile, the only remains of most of the people caught in the open were their shadows burnt into stone.22 People within buildings will also be faced with an immediate death owing to the collapse of buildings from the heat of the explosion. Survivors will live with devastating life conditions such as; blindness, third degree burns, internal bleeding, etc. The radiation emitted from the explosion will have calamitous effects on the environment and induce a great deal of incurable diseases and shortened life spans for both children and adults. Nuclear war not only disintegrates inter-State relations between nations, but also destroys the lives and livelihood of all individuals within the impacted area. For this reason, there has been a great deal of humanitarian debates and interventions regarding the trade and utilisation of nuclear weaponry. The Nuclear Non-Proliferation Treaty, which came into force in March 1970, was created specifically to circumvent the above upheavals for the ultimate purpose of nuclear disarmament. 190 States have signed this treaty, and they are classified into two categories, namely; nuclear-weapon states (which are the United States, Russia, China, France, and the United Kingdom), and non-nuclear-weapon states (which include the rest of the States). Under the treaty, the five nuclear-weapon states strive for a general and complete disarmament, while the non-nuclear-weapon states agree to halt any development or acquisition of nuclear weapons.23 Israel and India are not parties to this treaty, and unfortunately, nuclear trade has not reached a point in international law to acquire jus cogens status, which would essentially ban all countries from indulging in such trade, regardless of whether they were parties to the agreement or not. Jus cogens is the highest source of international law, which would principally render each and every State obligated to follow that norm which has acquired jus cogens status. An example of jus cogens would be torture. No country is by any means permitted to use torture towards any goal they wish to achieve, and no domestic law can override this principle. Nuclear weaponry and trade, as established in the Advisory Opinion, is neither legal nor illegal. Its status it yet to be determined, and with this unsettled 22

23

The effects of nuclear weapons, CAMPAIGN FOR NUCLEAR DISARMAMENT, (last accessed: September 15, 2014), http://www.cnduk.org/campaigns/global-abolition/effects-of-nuclear-weapons.

Daryl Kimball, The Nuclear Non-Proliferation Treaty (NPT) at a Glance, ARMS CONTROL ASSOCIATION, (last accessed: September 15, 2014), https://www.armscontrol.org/factsheets/nptfact.


NILS Law Review

November, 2014

Vol. 1

denomination, different countries are at liberty to transact and develop nuclear arms as they please (if they are not parties to the NPT, which would essentially include India, Israel and Pakistan). Though nuclear arms trade is still permitted, and non-parties to the NPT are allowed to transact in the same, countless objections have been raised against the permission of this trade. Just recently, in February 2014, the Second Conference on the Humanitarian Impact of Nuclear Weapons took place in Nayarit, Mexico, to debate upon the global and long-term consequences of any nuclear detonation, from the perspective of the 21st century society, including areas such as humanitarian assistance, the economy, public health, climate change, development and environmental issues, food security, risk management, etc. This was a follow up to the first conference which took place in May, 2013. In the first conference, there were three main points discussed. Firstly, it was seen as unlikely that any state or international body could address the immediate humanitarian emergency caused by a nuclear detonation in an adequate manner and provide sufficient assistance to those affected, and even establishing those capabilities would be a difficult task. Secondly, the historic practise from the usage and testing of nuclear weapons has displayed their devastating short-term and long-term impacts. While political conditions have changed, the disparaging potential of nuclear weapons is still the same. And finally, the effects of a nuclear weapon detonation, irrespective of its cause, will not be constrained by national borders, and will affect states and people in significant ways, regionally as well as globally.24 There was much recommendation from the conferenceâ&#x20AC;&#x2DC;s participants to continue this debate and draw it out into a second conference for the sake of greater awareness, contribution from States and broadened discourse on the humanitarian impacts of nuclear weaponry. Various impacts of nuclear weapon detonation were discussed in the conference such as: the fact that it is not constrained to national borders; socio-economic development will be curtailed and severe environmental damage will occur and the damage will be widespread, leaving the impoverished most vulnerable; there would be a great deal of social and political harm arising from requisite economic and infrastructure regeneration; radiation exposures could result in cancer, cessation of functioning of human organs, and other incurable diseases; there are high 24

Conference: Humanitarian Impact of Nuclear Weaponry, MINISTRY OF FOREIGN AFFAIRS, (last accessed: September 15, 2014) http://www.regjeringen.no/en/dep/ud/selected-topics/humanitarianefforts/humimpact_2013.html?id=708603.


NILS Law Review

November, 2014

Vol. 1

risks of cyber-attacks by terrorist group in order to access nuclear weaponry information and even to control actual utilisation; there are great risks of growth of accidental, unauthorized or intentional use of nuclear weaponry due to greater deploy of the same; and finally, once a nuclear explosion occurs, no state or non-state organization can possibly have the capacity to rectify or provide enough assistance for such devastating events. The Chair believed that this created awareness of the humanitarian impacts of nuclear weapons was already changing the worldwide perceptions of those engaging in discussions and debates concerning nuclear weapons. The creation of the Comprehensive Nuclear TestBan Treaty, which is a core element of the international nuclear disarmament and nonproliferation regime, and the achievement of a comprehensive outcome in the 2015 Nuclear Non-Proliferation Treaty (NPT) Review Conference, in addition to the discussions on the humanitarian impact of nuclear weapons made in these two conferences, are mutually reinforcing processes.25The Chair also called on all governments to form new and renewed multi-sectorial partnerships with civil society to work towards mutually beneficial objectives, and also announced the launch of a third conference to take place in December, 2014, subject to much support for the initiative to deepen the momentum, anchor the conclusions arising from the discussions and to take them forward. The aim of these conferences is to carry out comprehensive discussions on the humanitarian impact of nuclear weapons in order to facilitate the commitment of States and civil society to reach new international standards and norms, through legally binding instruments.26 This detailed outlook on the recent developments of nuclear weaponry and the debates ensuing regarding the same is to provide, in part, a basis to understand the inappropriateness of the humorous advertisement. These conferences have been begging for the participation of both nuclear-weapon States being parties to the NPT and States who are not parties to NPT. Israel and India are yet to participate in these debates and present their views on the culture of nuclear armaments. Clearly, nuclear trade and â&#x20AC;&#x2022;defenceâ&#x20AC;&#x2013; is all that really matters to them. This advertisement they have created is a joke, and is something well beyond the scope of appreciation a humanitarian would donate to it. Human rights activists strive hard for the protection of the right to life, and this video merely negates their efforts and displays an 25

Second Conference on the Humanitarian Impact of Nuclear Weapons, SRE, (last accessed: September 15, 2014), http://www.sre.gob.mx/en/index.php/humanimpact-nayarit-2014.

26

Ibid.


NILS Law Review

November, 2014

Vol. 1

attempt to induce the atrocities of nuclear detonation through customer persuasion and weaponry purchasing. As we have already seen before, this video is nothing but a subtle legitimization of nuclear warfare, though the countries claim the weapons are merely for selfdefence. India and Israel have refused to sign the NPT, but when 190 other countries have have agreed to not utilise nuclear weapons, what is the need to be so adamant about nuclear defence in particular, unless you anticipate some kind of war ensuing in the future? Humanitarians would condemn such a video from ever being publicly displayed. It trivializes the prominent and highly controversial subject of nuclear warfare through a simplistic demonstration of Indian song and dance, and conveniently overlooks the long-term impacts of RAFAEL‘s promotional stunts, i.e. war. The atrocities and calamities caused by the use of nuclear weaponry have been enunciated enough in this paper. Thus, the question remains- when will India and Israel learn? Israel is currently engaging in a nuclear war to the death, as it would seem, with Palestine (with India lying close as an ally), and India seems to be harnessing all the weaponry it can for the sake of its own defence requirements and in furtherance of the economic, strategic and military agreements they maintain with Israel (being Israel‘s biggest customer in terms of the same). Is there really any scope for change? Is disarmament ever going to be an option for these two countries? The chances look meek as of now, but who really knows what the future holds? Conclusion The greatly widespread nature of international law allows it to be seen throughout the legal systems of the world and in various aspects of life. Films, songs, novels and various other forms of popular culture have been prevalently known to display diversified aspects of international law. Some have been intended to explicitly display such content. RAFAEL‘s video advertisement is an example of the same. Their lyrics, being clearly representative of establishing ties with India in terms of nuclear trade, have been fashioned through a forum of Bollywood styled popular culture for the sake of appealing to the Indian people. Through this paper, we have established that third worldism may have a role to play in Israel‘s simplistic perception of India, applying the constructivist approach. Further, we observe the indirect legitimization of nuclear warfare through the coordinated song and dance dedicated to the promotion and ―attractive Indian-styled‖ decoration of weaponry (with garlands, vermillion powder, etc.). Israel essentially proposes to strengthen Indo-Israeli relations through the agreement of trade of weapons of mass destruction.


NILS Law Review

November, 2014

Vol. 1

To humanitarians and human rights activists, this video is far from acceptable. But, to a political leader trying to gain as much international support as he can, agreeing to such a trade defence relationship is not out of the ordinary. ―It‘s just business‖, as most would justify. Personally, I cannot condone this kind of promotion. Firstly, this advertisement gives the impression of a highly one-dimensional and simplistic vision of India. Most people would discard the nature of the advertisement, owing to the fact that it probably wasn‘t intended to be very high budget or insightful.27 Secondly, nuclear arms distribution and trade is something that is not only highly controversial, but clearly disregards the possibility of imminent destruction, public harm and losses, and societal and inter-relational damage. The convenience that Israel and India share, by not being signatories to the NPT, only display their approval for such future events. This advertisement is nothing but humorous to any third party watching it,28 but who really knows the extent of the detriments this promotional scheme could have on our lives? There is nothing funny about war, and there certainly isn‘t anything to endorse about it.

27

Considering RAFAEL is a multi-billion dollar company, the least they could do is invest in some decent lighting.

28

With its chorus beaming, and I quote, ―Dinga dinga, dinga dinga, dinga dinga, ding dinga dee‖. What does that even mean?


NILS Law Review

November, 2014

Vol. 1

Rape: The Lesser Known Casualties of War Rounaq Joshi1

Introduction Justice Richard Goldstone, the Chief Prosecutor at the International Criminal Tribunal for the former Yugoslavia stated that, ―Rape has never been the concern of the International Community.‖2 The International Criminal Tribunal for Rwanda (ICTR, 1994) declared rape to be a crime against humanity which later lead to the conviction of the first accused person in 1998 by the ICTR.3 Rape is the most dreadfully silent crime perpetrated by a regime in the most barbaric way that relies on deep-rooted taboos of a barbaric society and on the silence of the victims, convinced that they will be rejected by their own society. The United Nations investigators and NGOs, have on several counts stated that they were not able to get correct statistics on the widespread accounts of systematic rape on account of the silence of the victims.4 Reviewing these acts and divulging all the relevant information, one assumption can be safely made: that no one is safe, and that no act is impossible. This article will henceforth impress upon the reader the innumerable counts of rape and related crimes against humanity which were suppressed, and later disposed of without anything more than a thought. These acts are the lesser known casualties of war. History of War Rape The Explanatory note in the Rome Statute, which officially binds the International Criminal Court, defines rape as follows:

1

Student of III Year, BBA.LL.B. at Symbiosis Law School, Noida. Author can be contacted at joshi.rounaq@gmail.com 2

Marlise Simons, For the First Time, Court Defines Rape as War Crime, New York Times, June 1996 -.

3

The Prosecutor against Jean Paul Akayesu (ICTR-96-13)

4

Cojean, A., ‗Syria‟s Silent War Crime: Systematic Mass Rape‟, Worldcrunch, 11th March 2014, available at http://www.worldcrunch.com/syria-crisis/syria-039-s-silent-war-crime-systematic-mass-rape/human-rightsprison-torture-assad-free-syrian-army/c13s15245/#.UyaPsfmSyDs


NILS Law Review

November, 2014

Vol. 1

―The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the penetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.‖5 Ancient Greeks considered rape of women (during times of war) ‗a socially acceptable behaviour well within the rules of warfare‘ and warriors considered the conquered women ‗legitimate booty, useful as wives, concubines, slave labour or battle-trophy‘. Such was the condition keeping in tune with the conditions, the development and the education in those periods. Rape as a crime has always been recognized in international customary laws. Such recognition was first provided in the Lieber Code (1863) which was the first codification of the international customary laws that emphasised on laws which would punish rape. Its objective was the protection of the State and all entities in the State. 6 The Lieber Code, which is also known as the Instructions for the Government of Armies of the United States in the Field or Lieber Instructions, was signed by Abraham Lincoln during the American Civil War and specified how soldiers should conduct themselves during wartime. This code was used extensively during the America-Philippine war, but later became a defence for actions against the native population. In the early 20th century, punishment and justice was given to the guilty and the victims respectively simply because of the existence of the laws of war in the Lieber Code and the Hague Convention which asserted that the ‗family honour and rights must be respected‘. Next3 came the most drastic times in world history- the World Wars. The rise of Nazi Germany and Hitler‘s assertion of the extermination of the Jews and the rise of the Aryan Germans lead to the extermination of approximately 6 million Jews, and millions of other soldiers, and civilian population. The Nazi Army would often capture the prisoners of war (POW) and repeatedly rape them. One particular account was given by one of the most noted writers to tell his tale about his capture and subsequent torture in the Auschwitz and Buchenwald extermination camps. In his book, Night trilogy, Elie Weisel writes that after fighting for his life, when he was liberated by the Red Army (Soviet Army) he chose to live in France, and there he met a woman. A woman who was so carried away by the act of 5

6

International Criminal Court, Elements of Crimes, U.N. Doc. PCNICC/2000/1/Add.2 (2000)

Kelly Dawn Askin,War Crimes against Women: Prosecution in International War Crimes Tribunals, Martinus Nijhoff Publishers(1997)


NILS Law Review

November, 2014

Vol. 1

prostitution that she tried everything to cover up her past. She says to Elie,‖ Did you ever sleep with a twelve year old girl?‖ Bemused and speechless, Elie understood that she was one of the victims, and that she was abused. She had been battling with the moral dilemmas of her life beginning at the time an SS Officer of the Gestapo chose this then twelve year old girl over the women to satisfy his needs and also those of his fellow officers. But this is just one particular story, one story among thousands of others, of people who are trying to rebuild their lives after such a horrific past. After the war, came the fourth Geneva Convention in 1949 in which Article 27 explicitly prohibited wartime rape and enforced prostitution. This did not make any difference, since an estimated 500,000 women were reportedly raped during the 1994 Rwandan Genocide.7 UN agencies also estimated rape counts for other civil wars. More than 60,000 women were raped during the civil war in Sierra Leone (1991-2002), more than 40,000 in Liberia (19892003), around 60,000 in the former Yugoslavia (1992-1995), and at least 200,000 in the state of Democratic Republic of Congo since 1998.8 Judge Navanethem Pillay, who is now the United Nations High Commissioner for Human Rights made a statement after the verdict of the trial of Jean-Paul Akayesu, the mayor of Taba Community in Rwanda: ―From time immemorial, rape has been regarded as spoils of war. Now it will be considered a war crime. We want to send out a strong message that rape is no longer a trophy of war.‖ Recognition and Application The application of these laws, laid down by Articles in International Law and Conventions started with the birth of ICTY (International Criminal Tribunal for former Yugoslavia) and ICTR (International Criminal Tribunal for Rwanda).

7

Violence Against Women: Worldwide Statistics

8

Background Information on Sexual Violence used as a Tool of War

www.un.org/en/preventgenocide/rwanda/about/bgsexualviolence.shtml


NILS Law Review

November, 2014

Vol. 1

International Criminal Tribunal for the Former Yugoslavia The Yugoslav Wars were ethnic conflicts fought between 1991 and 1999 on the territory of former Yugoslavia which eventually lead to the break-up of Yugoslavia into different states. All these conflicts were separate. However, they were inter-related by way of region, the war in Slovenia (1991), the Croatian War of Independence (1991-1995), the Bosnian War (19921995), and the Kosovo War (1998-1999). Out of all these wars, the Bosnian War is said to be the bloodiest of them all, resulting in deaths of millions and crimes against humanity committed across the war torn regions of Bosnia, Serbia and Croatia. One of the main features of the Bosnian conflict was the highly organised and systemic rape of Bosnian Muslim women by the Bosnian Serb Army. It has been estimated that in 1993 approximately 20,000 Bosnian Muslim women were raped by the Bosnian Serb army in what were known as rape camps.9 The rape of women was used as a weapon of war10, and as a deliberate military strategy to spread terror, destabilize the civilian population and reward the soldiers.11 It was a tool of ethnic cleansing where sexual violence against women, in particular Muslim women, was used to humiliate their ethnic group. 12 The International Criminal Tribunal for former Yugoslavia was henceforth created to indict such persons guilty of crimes against humanity. The first case which convicted a person for the offence of rape under crimes against humanity was Dragoljub Kunarac in the case of The Prosecutor of the Tribunal against Dragoljub Kunarac and Radomir Kovac in 1999 before the ICTY.13 In this particular case, the Serbian forces, supported by heavy weaponry, invaded the city and took over it, eventually gathering all the Muslim and Croat inhabitants into prison facilities where they were subjected to torture and other forms of crimes against humanity. The women were kept in a place called the Partizan where the Serb army soldiers entered in groups of 3 9

Thoman D., & Ralph R., ―Rape in War: The case of Bosnia‖, in Ramet, above and 18, 203, 204. See also, the European Community Investigative Mission into the treatment of Muslim women in the former Yugoslavia: Report to European Community Foreign Ministers, UN Doc S/25240, annex I, 3 rd February 1993. 10

Copelon R., ―Surfacing Gender: Reconceptualizing Crimes against women in time of War‖ in Lois Ann Lorentzen and Jennifer Turpin (eds), The Women and War Reader, (New York University Press, 1999) 64 11

Ibid.,

12

Ibid., Turpin, ―Many face: Women confronting War‖ 1, 5.

13

IT-96-26-P3


NILS Law Review

November, 2014

Vol. 1

or 4 and took women with them for sexual assault and rape. The commander of the Army of the Serbs then was Kunarac and he was fully aware of the acts by his soldiers and was himself included in many such acts. Kovac was the second in command and was equally aware of these acts. Hence, Kunarac was found guilty of crimes against humanity and most importantly, of mass rape of women under Article 7(1) and Article 7(3) of the Statute of the International Criminal Tribunal of former Yugoslavia. The Statute of ICTY includes rape under crimes against humanity under Article 5 which states: ―The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population.14 (g) Rape” Article 7 provides for Individual Criminal Responsibility where clause 3 states: ‗(3) The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.‟15 Due to this regulation, rape would now be accounted for as a crime against humanity and swift justice would be provided to the rape victims who had been subjected to torture through the years. Interestingly, since the ICTY was set up in 1993, the first indictment for rape came only in 1999 in the Kunarac case. There are several cases in the Court which are the main markers of the Tribunal‘s progress including the indictment in the Tadic case, where another accused, Drazen Erdemovic had been sentenced by the Tribunal. The cases of Celebici and Blaskic had started and finished within a year in 1995-96. In these cases, there were indictments against several persons, alleging numerous violations of customary and statutory laws and for crimes against 14

The Statute of International Criminal Tribunal for the former Yugoslavia (Resolution 808, 1993)

15

Supra., at 12


NILS Law Review

November, 2014

Vol. 1

humanity such as torture, extermination and enslavement, but not rape. This was despite the fact that rape was rampant in all the areas since the commencement of the war. This was because rape statistics were difficult to gather. The rape victims were either dead or faced such psychological and mental trauma that they would not speak of the incident. However, the scenario changed in the Kunarac case where the ICTY Appeals Chamber held that: “While proof that the attack was directed against a civilian population and proof that it was widespread or systematic were legal elements of the crime, it was not necessary to show that they were the result of the existence of a policy or plan. The existence of a policy or plan could be evidentially relevant, but it was not a legal element of the crime”16 International Criminal Tribunal for Rwanda The Rwandan genocide witnessed mass rapes and sexual violations throughout the country for years.17 Women were not just raped behind closed doors; they were raped in every area in the country possible, from the streets to cultivated plots and government buildings and offices.18 The objective of the war which was basically a communal divide among the people, fuelled them to do such acts and, as the Media trial judgement noted in convicting three media executives for publicly inciting to genocide, lead to the completely foreseeable attack on the Tutsi women.19 Shortly after the genocide, the United Nations set up the International Criminal Tribunal of Rwanda to hold accountable those with the greatest responsibility for the atrocities that took place during the Rwandan genocide.20 The task of the ICTR is to provide justice to those who

16

IT-96-23&23/1, 2002, para. 98

17

Nowrojee B., ‗‖Your Justice is too Slow‖ Will the ICTR Fail Rwanda‘s Rape Victims?‘, United Nations Research Institute for Social Development, 2005 18

Ibid.

19

Supra., at 15

20

Supra ., at 18


NILS Law Review

November, 2014

Vol. 1

seek dues for the inhuman acts and violations committed by the guilty. However, the rate of progress has been disappointing and tensions with Rwanda have surfaced from time to time.21 The statistics of rape convictions in the ICTR are abysmal since there were no rape charges brought by the government in 3/4th of the 21 judgements given in the Tribunal. Of the 30 percent that included rape charges, only 10 percent were found guilty. 20 percent were acquitted due to lack of evidence submitted before the court.

22

In real numbers, this means

that at the tenth anniversary of the genocide, only two defendants have been held to be responsible for their roles in mass rapes and genocide of thousands of people. The first case out of the two is important. The case of The Prosecutor against Jean Paul Akayesu23, where the accused was found guilty of 3 out of 15 charges which included rape and other crimes against humanity under Article 3 and Article 6 of the Statute of the International Criminal Tribunal for Rwanda which is similar to that of the Statute of ICTY. In this case, for the first time, an international tribunal was called upon to interpret the definition of genocide at the Genocide Convention, 1948, and to define the crime of rape in international law.24 The requirement of ‗widespread or systematic‘ was examined in Akayesu, where the Trial Chamber declared that the concept of ‗widespread‟ could be defined as ‗massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims‟,25 while „systematic‟ could be defined as „thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources.‘26 The most recent judgement is the Prosecutor v. Pauline Nyiramasuhuko in 2011, where the accused, a Rwandan politician, who was a Minister for Family welfare and the Advancement of Women, was found guilty of inciting troops and militaries to rape women. She was the 21

As of May, twenty-seven judgements, involving thirty-three accused, has been rendered; see ICTR Annual Report 2007, A/62/284 – S/007/502 22

Musema, Alfred (ICTR-96-13): Life sentence for rape (2000), overturned on appeal and acquitted of rape (2001), Niyitegeka, Eliezar (ICTR-96-14): acquitted by prosecution; and Kamuhanda, Jean de Dieu (ICTR-9954): acquitted of rape (2004), acquitted of rape (2004), rape acquitted not appealed by Prosecution. 23

(ICTR-96-13)

24

Shaw, M., ―International Law‖, Cambridge, 6th Edition, 2008, pg. 409

25

ICTR-96-4-T, 1998, para. 576

26

Id., at 577


NILS Law Review

November, 2014

Vol. 1

first woman to be brought to trial to the ICTR and the first woman to be convicted for incitement to rape. Rwandan women express deep concerns that the ICTR is not prosecuting the crimes that occurred against them properly. They have demanded justice in the form of imprisonment, for those who were responsible for the ethnic cleansing and the mass rape. This sentiment was summed up most articulately by one woman who lived on the outskirts of Kigali in a housing co-operative set up to place and help rape victims contracted with HIV/AIDS. The horrific incident leading to her contraction of HIV or even her plan for her children after her death did not make her cry. She broke down in tears once when she was asked whether there was justice delivered to her and the people affected around her. She said: ―For those of us on the road to death, this justice will be too slow. We will be dead and no one will know our story. Our families have been killed and our remaining children are too young to know. What happened to us will be buried with us. The people for whom this tribunal was set up for are facing extinction- we are dying. We will be dead before we see any justice.‖27 The Illegitimate Use of the Superpower Status The most recent issue regarding rape in war crimes would be from the United States of America. The George W. Bush speech of stating ‗you‘re either with us or against us‘ fuelled the Americans with anger and disgust resulting in a major rift in the relations between the Americans and the Muslim world. The United States invaded Iraq and Afghanistan with the aim of fighting terror, and has since been at war with Afghanistan. The reason provided for the invasion of Afghanistan was that it was to remove all the insurgents, the Taliban and the Al- Qaeda, which has resulted in countless deaths. The United States has been accused of countless civilian deaths and rapes of women in Afghanistan and also within their own military troops. This has been unaccounted for simply because of two reasons- (a) The United States is currently the only superpower in the world and hence, none can go against them, (b) The United States is not a member of the ICC since the country has signed but not ratified it and hence, the Statute which includes punishment for war crimes does not apply to the United States. 27

Supra at 12, pg. 18


NILS Law Review

November, 2014

Vol. 1

One of the few incidents which have occurred is in war-torn Afghanistan, where the residents of a village in northern Afghanistan stated that the American troopers raped several women during a night time raid in a rural community. This incident took place in a village in the Chahar Bolak district of Afghanistan‘s Balkh Province where the US Forces carried out several searches in every house against directions.

The villagers said they had been

threatened by the commander of the US forces with ―consequences‖ in case of complaints. During the operation, the troopers separated the men and women of about 15 families and raped several women, the locals said. Since the beginning of the US-led invasion of Afghanistan in 2001, American soldiers have subjected the locals in the area to torture and acts which would conspicuously violate basic human rights.28 In March 2006, 4 United States soldiers from an infantry Division abused and gang raped a 14 year old minor girl and murdered her as well as her entire family which also consisted of a 5 year old child. Another soldier attempted to cover up the entire incident and one of the killers was found guilty on May 07, 2009 in the US District Court of Paducah. He is now awaiting his sentence. A CBS news release of photographs showing heinous sexual abuse and torture of Iraqi POWs at the notorious Abu Gharaib prison raised a lot of questions in the minds of the people; this was written by journalist Ernesto Cienfuegos in La Voz de Aztlan on May 2nd. To add more to the development of this particular area of casualties of war, on 24 th June 2013, the United Nations Security Council unanimously adopted a resolution which provides for the prevention of all kinds of sexual violence and rape. The laws were made more stringent with a more efficient regulation. In this Resolution, the Security Council recognized the ‗Declaration on Preventing Sexual Violence in Conflict‘ which was adopted by the G8 foreign ministers in London on 11th April 2013. When rape is used as a weapon in war, this unnecessarily exacerbates the conflict and causes more casualties which leads to loss of human lives and violation of rights. The Resolution further went on to note that sexual violence can constitute a crime against humanity or a constitutive act with respect to genocide.29

28

Duff, G., ―US forces rape women in Northern Afghanistan village: Locals”, Veterans Today, December 2012

29

The UN Security Council Resolution 2106, www.rapeinwar.org/the-un-security-council-resolution-2106/


NILS Law Review

November, 2014

Vol. 1

This would be one more step towards the development of laws against rape, which in fact is still one of the lesser known casualties of war. But the optimists that humans always tend to be, we always strive towards the perceivable future to make sure women live in a society where they are not viewed as objects. This is happening to a large extent, and the world is seeing more convictions against rapists. However, the most effective way to curb such a human right violation would be to create awareness, which would lead to a more cautious approach. The creation of awareness is important because when war strikes, the most affected people are the civilians, whether there are soldiers or not. Conclusion Rape has been one of the most gruesome crimes to be inflicted on a human, which takes away their dignity and the will to live. In such a situation, health care professionals have a unique role to play in the investigation and documentation of rape during war as well as in treatment of survivors. Collecting and presenting solid evidence will help hold perpetrators accountable, restore the rule of law, and limit future violations. Furthermore, increasing medical and social knowledge about rape during war will facilitate the development of strategies that foster the recovery of survivors of rape and their communities. The Yugoslav wars and the Rwanda genocide were just two of the worldwide incidents. However, that was a period during which rape as a crime was genuinely accepted and accounted for. This in turn provided swift justice to many of the victims who had been subdued and tortured. The American wars have lead the world to rethink whether they are doing the right thing by eradicating what they term as â&#x20AC;&#x2014;terrorâ&#x20AC;&#x2DC;. The misuse of might by a superpower certainly comes into picture when such blatant war crimes are not punished. This being a highly sensitive topic, to try to gain the trust of the victims subjected to such atrocities, there should be a separate council dealing with such issues under the International Committee of the Red Cross. Medical professionals have the expertise to talk to the victims. The greatest help that this community can receive is the truth, more statistics and the ability to work on them. Such acts cannot be made extinct completely but can be prevented to a great extent and that should be the peace-keeping goal of the countries in order for a better future. The International Criminal Tribunal has slowly acceded to a bigger role in convicting all the guilty and this should consistently improve. Rape should be known all around the world as a crime and such atrocities should be well accounted for and knowledge should be spread in all


NILS Law Review

November, 2014

Vol. 1

four corners of the world. Every individual life should be counted and accounted for and valued.


NILS Law Review

November, 2014

Vol. 1

Right to Health vis-Ă -vis Patent Protection Ravinder Kumar & Rajat Gupta1

Introduction One of the most debated issues amongst scholars internationally is the relation, or rather the conflict, between patents and the human right to health. There is a constant tussle between health needs and drug patentability. This issue is still unresolved by the judicial and legislative authorities, as no clear picture has been provided for the settlement of this dispute. The strong demand for accessibility of medicines has raised serious doubts in relation to the patentability of drugs. Patent rights directly affect the affordability of developing countries to life saving drugs, in other words, the poorâ&#x20AC;&#x2DC;s right to health. A patent right is the protection given to the inventor for his invention, preventing it from unauthorized use or infringement. Incentives provided to the inventor are based upon the Incentive to Invent theory2& the Labour theory3. These theories form the basis of patent protection and justify these rights by giving the holder of these rights a monopoly over the subject matter for a limited period of time. Through such rights patent owners enjoy recognition, economic incentives and monopoly rights over the invention. Large corporate entities, mostly in developed countries, utilize these protections by charging high price for patented products, which results in half the world being deprived of life saving drugs and medicines. A leading faction among the scholars is of the view that such monopoly rights generally inflate prices. This circumstance is problematic as goods that are essential for the enjoyment of human rights such as new medicines, can be priced out of the reach of poor people4. Health is a fundamental human right indispensable for the exercise of other human 1

Ravinder Kumar is a V Year B.A.LL.B. student at Gujarat National Law University, Gandhinagar. Rajat Gupta is a IV Year B.A.LL.B. student at Gujarat National Law University. Authors can be contacted at ravinderk10@gnlu.ac.in and ravinderbargujjar8@gmail.com respectively. 2

Focuses on the role of patents in providing adequate economic incentives to invest in technological research and development, Kenneth W. Dam, The Economic Underpinnings of Patent Law; Wendy J. Gordon, Intellectual Property, in THE OXFORD HANDBOOK OF LEGAL STUDIES. 3

Every person has a right to the fruits to her labor. John Locke: Second Treatise of Civil Government John Locke (1690). 4

Sarah Joseph. Trade and the Right to Health, Swiss human rights book, 2009.


NILS Law Review

November, 2014

Vol. 1

rights5. ―The enjoyment of the highest attainable standard of health‖ is ―a fundamental right of every human being without distinction of race, religion, and political belief, economic or social condition‖6. Right to health in all its forms and at all levels contains the following interrelated & essential elements, the precise application of which will depend on the conditions prevailing in a particular State party; (a) Availability (b) Accessibility (c) Acceptability (d) Quality7. Deprivation of any of the above elements would mean compromise in attaining the required standard of right to health. Right to Health and Patent Rights Do Not Lie on Same Platform Few authors consider patent rights to be on par with human rights and contend that they can be protected similarly like other human rights. The fulcrum of their argument rests on the language of Article 15(1) (c) of International Covenant of Economic, Social and Cultural Rights (ICESCR) along with Article 27(2) of the Universal Declaration of Human Rights (UDHR)8. These provisions discuss the rights of the inventors on their creation and the profits derived from them. This dispute was eventually settled by General Comment No. 17 which clarified that “Human rights are fundamental as they are inherent to the human person as such, whereas intellectual property rights are first and foremost means by which States seek to provide incentives for inventiveness and creativity, encourage the dissemination of creative and innovative productions, as well as the development of cultural identities, and preserve the integrity of scientific, literary and artistic productions for the benefit of society as a whole.‖9It would be erroneous to rely on above stated provisions to equate intellectual property rights with human rights10.

5

Para1. CESCR General Comment No. 14: The Right to Highest Attainable Standard of Health (Art. 12).

6

WHO Constitution (WHO 1946, 2).

7

Para 12 ibid.

8

J. Millum, ―Are pharmaceutical patents protected by human rights?‖ Journal of Medical Ethics 34 (2008), p. e25, Article 15(1)(c) of the ICESCR recognizes the right of everyone to ―benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author‖, Article 27(2) of the Universal Declaration of Human Rights provides: ―Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author‖. 9

Para1, GENERAL COMMENT No. 17 (2005).

10

Para 3 ibid.


NILS Law Review

November, 2014

Vol. 1

Right to health has been recognized by various international instruments11 as well as national legislations of different countries. In India, right to health has found its places in the Constitution of the country, within the ambit of Right to life (Article 21) by virtue of various judicial precedents12.Dear life in good health & free from disease is the foremost human right & is a Constitutional fundamental13. Health is the factor crucial for survival and welfare of mankind and it should not be compared with individual rights, as the former is a global concern. Human rights are timeless expressions of fundamental entitlements of the human persons14 whereas, intellectual property is a social product and has a social function circumscribed by time15. Despite, the global recognition of right to health, a grey area nonetheless exists, when needy countries try to take actions in furtherance of implementation of this right either with their policies or under their municipal statutes. The central position acquired by this particular issue of right to health vis-à-vis patent protection has created a palpable tension in the global arena, thereby resulting in the division of nations into two differing groups. Developed nations, whose capitalistic priorities lie with patent owners and large companies, coupled with their own selfish profit making interests, have a strong impetus towards an intellectual property rights (IPR) regime that places IPRs at a higher pedestal than the fundamental right to health. This non-utilitarian approach favours strong IPR laws, protection from infringement, monopoly rights and incentives for the inventors. The opposing action consists of developing countries, where a majority of the population cannot afford expensive (patented) medicines; and a requirement of utilitarian & socialistic approach is imperative. Developing countries, initially, had liberal laws for the protection of IPR.As per the needs of their society; these countries were providing cheap medicines not only domestically but exporting the same to other countries which lacked production capacity. Until 2005, India was one of the world‘s largest pharmaceutical producers and the biggest exporter of 11

Art. 25 of Universal Declaration of Human Rights, preamble of WHO‘s Constitution 1946, Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights, 12

PaschimBangaKhetmazdoorSamity&ors v. State of West Bengal &ors (1996) 4 SCC 37

13

V. R. Krishna Iyer, Volume 17 - Issue 21, Oct. 14 - 27, 2000 India's National Magazine from the publishers of THE HINDU, can be accessed at http://www.frontline.in/static/html/fl1721/17210790.htm. 14

15

Para 2 GENERAL COMMENT No. 17 (2005).

Committee on Economic, Social and Cultural Rights, twenty-seventh session (2001), ―Human Rights and Intellectual Property‖, Statement by the Committee on Economic, Social and Cultural Rights, 29 November 2001, E/C.12/2001/15, at paragraph 4.


NILS Law Review

November, 2014

Vol. 1

affordable life-saving drugs to the developing world16. India and other developing countries had their legislations framed according to their needs. Based on Justice Ayyanger Committee‘s Report, India was not recognizing product patents and it was observed that ―It would not be an exaggeration to say that the industrial progress of a country is considerably stimulated or retarded by its patent system and whether the system is suited to it or not‖.17 Mrs. Indira Gandhi18standing at the world stage stated ―My idea of a better order in the world is one in which medical discoveries would be free of patents and there would be no profiteering from life or death‖. But external pressure from developed countries has impeded the developing countries from following this proposition. Developing countries are afraid of the implementation of such IPR‘s and the resultant abuse provisions which would lead to adversely affecting the poor people‘s right to health. This would as a further corollary, threaten the socialist and public sector oriented structure of the developing nations. Mr. Jose Serra19 while commenting on this issue said ―We are not talking about disregarding IPRs, but of using suitable instruments to check the abuse of patent monopoly in a crucial area like health‖. The dispute between IPR and the right to health has been waged through decades, and has been further aggravated by the advent of Trade Related Aspects of Intellectual Property Rights (TRIPS).With the advent of TRIPS this tension has further increased as it results in more stringent patent protection than before. All the member countries of the World Trade Organization (WTO) had to acquiesce with the agreement, irrespective of their consent to such changes. Developing countries like India and Brazil, who have always been advocating the adoption of utilitarian approach. They had earlier positioned them amongst the largest pharmaceutical producers in the world, but are now required reframe their legislations because of TRIPS. TRIPS and the Right to Health Another question that arises is whether TRIPS only provides for protection of IPR and does not enshrine any provisions which recognize its member country‘s right to safeguard or take 16

Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover A/HRC/11/12, 31 March 2009. 17

See Justice RajagopalaAyyangerCommitttee Report 1959 (p. 9, para 16),

18

Prime Minster of India Mrs. Indira Gandhi while speaking at the World Health Assembly at Geneva on May 6, 1981. 19

Mr. Jose Serra, Brazil‘s Health Minister.


NILS Law Review

November, 2014

Vol. 1

measures in pursuance of its people‘s public health. This was feared by many countries along with various organizations. The concern has been summed articulately by Ms. Ellen L‘Horn: ―The draft has already watered down the language demanded by the developing countries, if it is going to be weakened further by giving paramount importance to the rights of patent holders it would be a mockery of the professed sensitivity of the developed countries to the health concerns of the developing countries”20. However, TRIPS has taken care of this issue of public health. Even though intrinsically, certain measures which can be adopted by the developing countries for protecting their health concern have been provided, certain flexibilities and qualifications are required to fulfil policy goals of countries along with the broad principles mentioned in the TRIPS. Article 721, Objective clause, discusses about the contribution of IPR in technological advancement along with social & economic welfare whereas Article 822, Principles clause provides for Member countries to formulate their national laws for promoting their public interest depending upon the social need. Articles 7 and 8 have been considered as overreaching provisions that should qualify other provisions of the Agreement that are meant to protect intellectual property rights23. The flexibilities being provided to developing countries under TRIPS are as follows: 

Right of parties to grant compulsory license24 and also decide the grounds upon which such licenses can be granted.

Discretion to State Parties to decide what constitutes national emergency or circumstances of extreme emergency.

State Parties can adopt and implement parallel imports. They can decide the countries from where they want to import patented products.

20

Ms. Ellen L‘Horn of Mediene Sans Frontieres the Nobel Prize winning organization that has been one of the NGOs campaigning this issue. 21

Article 7, TRIPS ―Protection and enforcement of IPR should contribute to the promotion of technological innovation and to the transfer and dissemination, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare and to a balance of rights and obligations‖. 22

Article 8(1), TRIPS ―Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development.‖ 23

Para 3 Communication From India, Council for TRIPS, IP/C/W/195, 12 July 2000.

24

Art. 31 TRIPS ―Other Use Without Authorization of the Right Holder‖.


NILS Law Review 

November, 2014

Vol. 1

Least Developed Country Members‘ right to postpone providing pharmaceutical patents until 2016 which is subject to further extension as well.

Thus, contending that TRIPS only defends large corporate in developed countries is erroneous. TRIPS have also taken care of the interests of developing countries as well. The Apex court in India, whilst discussing the implications of the introduction of product patents for pharmaceutical products, observed that it is a matter of grave concern for those who are associated with ensuring continued access to affordable medicine in India and abroad. The Hon‘ble Supreme Court furthermore held: ―The Indian legislature attempted to address these concerns and, while harmonizing the patent law in the country with the provisions of the TRIPS Agreement, strove to balance its obligations under the international treaty and its commitment to protect and promote public health considerations, not only of its own people but in many other parts of the world (particularly in the Developing Countries and the Least Developed Countries)‖25. Thus, if these flexibilities are used by the Developing Countries, such as India, within the boundaries specified in TRIPS then the same can be moulded in their own favour. However, certain hesitation and confusion among the nations about the interpretation of TRIPS provisions was later removed by the Doha Declaration. Doha Declaration reaffirmed that ―TRIPS agreement does not and should not prevent members from taking measures to protect public health‖26 and in particular to promote access to health care for all. It has confirmed the relevance & importance of Article 7(Objective clause) &Article 8(Principles Clause) of TRIPS and also reaffirmed members right for compulsory license, parallel importing and the right of WTO Members to use, to the fullest extent, the provisions in the TRIPS Agreement, which provide flexibility for this purpose27.Developing Countries, looking for a declaration for recognizing their right to implement certain procompetitive measures specifically compulsory licensing and parallel importing28, and the Doha Declaration bridges that requirement adequately. This declaration would lead to motivating the developing countries in taking measures to safeguard their interests despite the pressure from Developed Countries.

25

Novartis AG v. Union of India Civil Appeal Nos. 2706-2716 of 2013.

26

Para 4 Doha Declaration on TRIPS and Public Health.

27

28

Para 4 Declaration on TRIPS Agreement and Public Health, adopted on 14 Nov. 2001.

―Implications of the Doha Declaration on the TRIPS agreement and Public Health‖, Carlos M. Correa, University of Buenos Aires, June 2002.


NILS Law Review

November, 2014

Vol. 1

However, on a corollary, a ―declaration‖ has no specific legal status in the framework of WTO law29. Nonetheless, it is a strong political statement which can prevent developing countries from being dragged into a legal battle, whereas ―the Declaration provides comfort to Members in the case of disputes…A Member whose legislation is being challenged by another Member because of alleged incompatibility with the TRIPS Agreement can refer to the contents of this Declaration in support of the measures under dispute, where relevant…and panellists are likely to take account of this complementary Declaration as well as the provisions of the TRIPS Agreement in their decisions”30. Hence, the Declaration is part of the context of the TRIPS Agreement, which, according to the rules of treaty interpretation, has to be taken into account when interpreting the Agreement31. But it is circumspect whether the countries can actually take extreme steps that override patent protection and giving way to public health. Countries which have dared to do so have had to face economic sanctions or were dragged to the WTO panel by Developed Countries. Moreover, some companies have declared that any further innovated drugs would not be sold in that particular Developing Country32.The same view is shared by the authors that despite these flexibilities and concessions provided to the Developing Countries it would be very difficult and cumbersome for them to implement the same. Courts Are Also Unable To Provide Any Answer All through the past century, as this conflict has risen, authors and scholars have failed to find any solutions for this tension between the two differing concepts. Which should be given preference over the other? Whether health concerns should be given utmost priority or IPR should be put at a higher pedestal? Courts and tribunals around the world have tried to explain the difference between the two. In Pfizer Inc. v. Cosmos Limited33, the adjudicating tribunal enforced patent rights and rejected the contention of public interest raised by the defence. The tribunal in question stated 29

30

31

Ibid. Vandoren (2002), p.8. European Commission, 2001, p. 2.

32

Bayer Corp. declared against Thailand after they gave compulsory license for two of the medicines patented by Bayer Corp.. 33

Case No. 49 of 2006.


NILS Law Review

November, 2014

Vol. 1

that the conditions were not followed for the exploitation of the patent in the case of a national emergency, HIV/AIDS having been declared as such by the government 34. This judgment faced both criticism and appreciation from the scholars. The side which appreciates it does so by contending that the Pfizer decision shows that the courts and tribunals are quite capable of applying the law and enforcing patent rights. Whereas, the other side criticizes the distinction between the instrumental nature of patent rights and the fundamental nature of access to essential medicines. While considering the relationship between patent rights and the right to health, the Kenyan High Court in Patricia Asero Ochieng & Ors. v Attorney General,35 the Court was of the Opinion that the State‘s obligation with regard to the right to health encompassed not only of a positive duty, but negative duty as well. The positive duty extends to ensuring that its citizens have access to health care services and medication, whereas, the negative duty extended to refraining from doing anything that would in any way affect access to health care services and essential medicines. The Court was stern on the point that any attempt by the legislature which rendered drugs unaffordable for citizens would be a violation of the constitution. The court stated that: ―There can be no room for ambiguity where the right to health and life of the petitioners and the many other Kenyans who are affected by HIV/AIDS are at stake‖. In F. Hoffman-La Roche Ltd. v Cipla Ltd36, the Hon‘ble Delhi High Court refused the injunction sought to refrain Cipla from producing a drug patented by Roche on the grounds of public interest. The court held that: ―The court cannot be unmindful of the general access to life saving products and the possibility that such access would be denied if an injunction was granted. The purpose of the legal regime in the area is to ensure that the inventions should benefit the public at large. The mere registration of the patent does not guarantee its resistance to subsequent challenges‖. IPR which has been linked to the right to health in the last century, over the last few decades, has evolved independently and are now a trade-off between each other. Both IPR and the 34

http://www.adamsadams.com/index.php/resource_centre/library/caselaw/pfizer_successful_in_enforcing_arip o_patent_in_kenya/ accessed on May 13, 2014. 35

36

Petition No. 409 of 2009. F. Hoffmann-La Roche Ltd. &Anr. v. Cipla Ltd. on 24 April, 2009.


NILS Law Review

November, 2014

Vol. 1

right to health directly impact each other, i.e. if one is preferred, it would hamper the other from fulfilling its own purpose. Consequently, one is forced to ponder as to whether a solution is feasible to such a conundrum. Whether There Is a Solution to This Particular Problem â&#x20AC;&#x2022;Justice is served when equal opportunities are granted to individuals and their capabilities are equalized37â&#x20AC;&#x2013;. A balance needs to be maintained while framing the legislations, the laws of any countries must not totally incline towards one side. It is no denying the fact that Intellectual property rights have an important role to play in stimulating innovation in health-care products in countries, but it is good for the countries which are financially & technologically capable along with profitable market. Countries where market is too small or very poor these patents would contribute little or nothing. For poor consumers, the monopoly costs of the patents can limit the affordability of health care products38. One of the main objective or purposes of temporary or limited monopoly granted was that it was never designed for the exclusive profit or advantage of the creator. The benefits to the public or the community at large were another doubtless and primary object in granting and securing the said monopoly39. Large companies hardly pay heed to this aspect despite the demands for a strong global patent system grows louder from one of the contesting factions. It is the moral duty of such companies as well as the developed countries to provide assistance to other nations in achieving their goals. Developing countries and the Least Developed Countries should seek international assistance in building capacities to implement TRIPS flexibilities in promoting the right to health. WHO and other United Nations bodies could provide such assistance40. Obstacles which are faced by the developing countries can

37

Amartya Sen 2002.

38

Report of WHOâ&#x20AC;&#x2DC;s Commission on Intellectual Property, Innovation and Public Health (CIPIH) (at pg. 196) 2006, See http://www.who.int/intellectualproperty/report/en/index.html accessed on May 16, 2014. 39

40

Quoted in Vaughan 1956, 32.

Para 106 UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover A/HRC/11/12, 31 March 2009.


NILS Law Review

November, 2014

Vol. 1

be removed by the technical assistance41 and nations who are equipped with such knowledge should consider it as their moral or ethical duty to step forward and proffer help. The approach should not be whether or not IPRs should override public health or vice versa, but the approach must be such that there should be a mutually amicable and balanced settlement. IPR and public health can and should be mutually supportive, as without effective medicines, public health policies would be hampered42‖.The developing countries need to inculcate the right to health in their national laws. They are to also review whether they have fully utilized the TRIPS‘s flexibilities43.One thing which should be remembered is that the interest of the patent holder must also be protected. Proper compensation must be given for example; India while giving Compulsory License to ―Natco‖ for ―Nexavar‖ Drug which was patented by ―Bayer Corporation‖ gave 8% of the sale as compensation to Bayer. Developed countries, however, should not pressurize developing nations in adopting stringent laws for patent protection. They should not drag developing countries to the WTO panel for using TRIPS flexibilities, as happened in the case of India while issuing compulsory license to ―Nexavar‖. A more cooperative & supportive nature is required from developed countries rather than intimidations with sanctions or other warnings. The TRIPS agreement cannot be held responsible for the health crisis in developing countries, while it must also not stand in the way for action to combat the crisis44. IPRs are not the sole reason for unavailability of medicines, it may be one of the factors, but there is a requirement for making reforms in other aspects too i.e. fragility of health systems, dilapidated health infrastructure, irregular supply chains, etc45.

41

WHO Global Strategy and Plan of Action (GSPOA) on Public Health, Innovation and Intellectual Property 2008. 42

European Commission, 2001, p. 2.

43

Para 97 UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover A/HRC/11/12, 31 March 2009. 44

45

European Union, IP/C/W/280.

Patricia Reaney, Interview: Creaking health systems hampering AIDS battle-WHO, Reuters, News Media, July 21, 2006.


NILS Law Review

November, 2014

Vol. 1 Concluding Remarks

To conclude, it is pertinent to mention that a peaceful solution to this apparent clash of two rights is possible. In order to settle it, it is important to distinguish between the instrumental nature of patent rights and the fundamental nature of the right to health. By working together wholeheartedly, sacrificing purely profit oriented agenda and helping the helpless. The integration of IPR and health rights with balanced and coherent legal norms taking care of both of the interests is welcomed and the option to get the balance right.


NILS Law Review

November, 2014

Vol. 1

Sovereign Immunity Over Merchant Vessels: Testing the ‘Commercial Activity’ Exception Tests BipluvJhingan and MeeraGopal1

There are innumerable ships lying peacefully at the bottom of the oceans of this world. While the ownership and immunities of their live counter-parts are often the subject of disputes (sometimes between States), the legal status of these wrecks are still in murky waters. Sunken vessels, in particular state vessels, are of immense significance as they raise a number of legal issues- that of ownership, state immunity, military interests, preservation of cultural heritage, environmental concerns etc. This paper mainly looks into the various aspects of the status of sunken merchant or commercial vessels vis-à-vis the concept of Sovereign immunity and how far the commercial activity exception operates in today‘s world. The paper has been divided mainly into three parts. Part I introduces the reader to the various aspects of wreck law and how the principle of sovereign immunity can be extended to wrecks in general. In Part II the authors have gone for a critical evaluation of the ‗commercial activity‘ exception as developed by the jurisprudence evolved mainly by the American and other common law countries and how far is it relevant in the era of globalisation. Part III includes the authors‘ conclusions and suggestions. Part I INTRODUCTION Before getting to the discussion on the concept of sovereign immunity over commercial vessels, the authors have tried to give a brief but not exhaustive outline of what can be called wreck law. This includes mainly, the definition of ‗vessel‘ and ‗ship‘ and more importantly, the definition of the term ‗wreck‘. Vessel has been defined as any ship or craft or any structure capable of navigation as per the International Convention on Salvage, 1989. The British Merchant Shipping Act defines it as including any ship or boat, or any other description of vessel used in navigation.2The same 1

Bipluv Jhingan is an IV Year student of B.A.LL.B. (Hons.) at the National University of Advanced Legal Studies, Kochi. Meera Gopal is an V Year student of B.A.LL.B. (Hons.) at the National University of Advanced Legal Studies. 2

Merchant Shipping Act1995, s 255 (1)


NILS Law Review

November, 2014

Vol. 1

enactment goes on to define the term ‗ship‘ as including every description of vessel used in navigation. The Oxford Dictionary defines the term ship wreck as- The destruction of a ship at sea by sinking or breaking up, for example in a storm or after striking a rock.In legal terms the wrecks may be of two types –wreccummaris3 and adventuraemaris (material still at sea). Under International Law, the 2007 Nairobi Convention on the Removal of Wrecks tries to define the term as including the following: a) a sunken or stranded ship; or b) any part of a sunken or stranded ship, including any object that is or has been onboard such a ship; or c) any object that is lost at sea from a ship and that is stranded, sunken or adrift at sea; or d) a ship that is about, or may reasonably be expected, to sink or to strand, where effective measures to assist the ship or any property in danger are not already being taken. Under the Abandoned Shipwreck Act enacted by the U.S Congress in 1987, the term ‗ship wreck‘ has been defined as a vessel or wreck, its cargo, and other contents. The term ‗wreck‘ has been defined under the British Merchant Shipping Act, 1894 as including jetsam, flotsam, lagan4 and derelict5 found in or on the shores of the sea or any tidal water.6 It expands the ambit of the traditional definition under common law which defines wreck as property cast ashore within the ebb and flow of the tide after shipwreck. However, the Act tries to differentiate the rights pertaining to land and those constituting droits of admiralty.7Under

3

"Wreccum mars", i.e. wreck cast upon the land. For further understanding see S.D. Lillington, "Wreck or Wreccum Mars? The Lusitania" [1987] Lloyd's Maritime and Commercial Law Quarterly 267 4

In the Cargo ex Schiller [1877] 2 PD 145 it was held, citing Attorney General v Sir Henry Constable [1601] 5 Co Rep 106, that "flotsam, is when a ship is sunk or otherwise perished, and the goods float on the sea. Jetsam, is when the ship is in danger of being sunk, and to lighten the ship the goods are cast into the sea, and afterwards, notwithstanding, the ship perish. Lagan ... is when the goods which are so cast into the sea, and afterwards the ship perish, and such goods are so heavy that they sink to the bottom.... 5

―Derelict‖ is property whether cargo or vessel, abandoned at sea by those in charge of it without hope on their part of recovering or intention of returning to it. See Halsbury's Laws of England, (5th edn, 2010) vol. 94, para. 987. 6

7

Section 510 (4) See n 6


NILS Law Review

November, 2014

Vol. 1

Indian Law, the Merchant Shipping Act of 19588adopts an inclusive definition under Section 2 (58) so as to take in both ‗goods‘ and ‗vessels‘ found at sea, but it does not seem to be exhaustive as to what constitutes a wreck. With respect to salvage, cargo includes all merchandise on board the salved vessel. It does not, however, include the personal effects of the master or crew, or the clothes or personal effects of the passengers, whether on the person, or taken on board for their daily use, or the ships provisions.9 Thus, it can be safely concluded that the term wreck takes into its ambit both the sunken vessel and the cargo on board the vessel. Moreover, this has been the accepted view under international maritime law.10The next question that arises for discussion is what law would be applicable to wrecks? The answer depends mainly on the location of the wreck11 among other things. Most scholars are in agreement in this regard.12 Certain enactments for instance the, Abandoned Shipwreck Act of 1987 (ASA) of USA, seeks to protect certain shipwrecks resting in U.S. waters by vesting title in such wrecks with itself13. Other than the location of the wreck, factors like ownership, historical value, physical status and proposed use are of utmost importance. However, the issue for ships in international waters is not so clear-cut: there are often competing legal claims between various salvors, possible original owners, insurers, states, and national governments.14 In addition, varying international laws may apply. Unfortunately, despite recent international conventions, there is no clear international consensus. Another

8

9

The Indian Legislation is much influenced by the parent British enactment. Halsbury, See n 6 para 926

10

The M/V "Saiga" (no. 2) case (Saint Vincent and the Grenadines v Guinea), Merits, International Tribunal of the Law of the Sea, Judgment of 1 July 1999, § 106 (stating that UNCLOS considers "a ship as a unit [...] Thus the ship, everything on it, and every person involved or interested in its operations are treated as an entity linked to the flag State. The nationalities of these persons are not relevant"). 11

Christopher R. Bryant,‗Professional, and Cultural Struggle over Salvaging Historic Shipwrecks‘, [2001-2002] 65 Alb L Rev 97 12

David C. Frederick & Caroline M. Blanco, ‗A Look at... Sunken Treasure; Legally, the Waters Are Murky‘Washington Post(30 August 1998) 3, (noting that "the fate of wrecks now depends entirely on where the ship happened to sink"); Anne M. Cottrell, ‗The Law of the Sea and International Marine Archaeology: Abandoning Admiralty Law to Protect Historic Shipwrecks‘ [1994]17 FORDHAM INT'L LJ 667, 66872(where the author observes that shipwrecks found in international waters are subject to fewer restrictions than those found within a nation's jurisdiction) 13

Abandoned Shipwreck Act 1987, (codified at 43 U.S.C. §§ 2101-2106 (1994)); See also Brendan I. Koerner, ‗The Race for Riches: Under the Sea, Treasure Hunters and Scientists Battle for History's Bounty‘US News & World Reports, (4 October 1999) 44, 49 (stating the ASA "grant[s] states ownership of abandoned wrecks within 3 miles of their coasts") 14

Craig Forrest, ‗Historic Wreck Salvage: An International Perspective‘, [2009] 33 TULMARLJ347, 348


NILS Law Review

November, 2014

Vol. 1

question that arises is that what happens to the status of a ship when it sinks, do the same laws apply then? IS SOVEREIGN IMMUNITY APPLICABLE TO SUNKEN VESSELS? Sovereign immunity is one amongst the important principles of customary international law. With respect to vessels, traditionally, it was applicable only to warships and government ships used for non-commercial purposes. State practice has shown that governments have claimed sovereign immunity over the wrecks of sunken warships through unilateral declarations and also in certain cases aggressive monitoring of such wreck sites and prosecuting any kind of unauthorised salvage activity directed at the wreck site. Such acts have been accepted by the rest of the world community.15 For instance, countries16 like US17, France18, Germany19, Japan20, Russia21, Spain22 and UK23 have declared that sovereign immunity is applicable to sunken warships and other state vessels too. Therefore, only an explicit notice of abandonment over the warship by the flag state can repudiate the

15

Rob Regan, â&#x20AC;&#x2014;Sovereign Immunity and The Lost Ships of Canada's Historic Merchant Fleetâ&#x20AC;&#x2DC;, [2006] 64 U Toronto Fac. L. Rev. 1, 22 16

All the following unilateral declarations can be found in Notices, Federal Register, [February 2004], Vol. 69, No. 24, 5647-8. 17

"The United States recognizes the rule of international law that title to foreign sunken State craft may be transferred or abandoned only in accordance with the law of the foreign flag State." 18

"In accordance with the 1982 United Nations Convention on the Law of the Sea (among others art. 32 & 236) and Customary Law, every State craft (e.g. warship, naval auxiliary and other vessel, aircraft or spacecraft owned or operated by a State) enjoys sovereign immunities, regardless of its location and the period elapsed since it was reduced to wreckage (general principle of non-limitation of rights of States)." 19

"Under international law, warships and other vessels or aircraft owned or operated bya State and used only on government non-commercial service ("State vessels and aircraft") continue to enjoy sovereign immunity after sinking, wherever they are located." 20

"According to International law, sunken State vessels, such as warships and vessels on government service, regardless of location or of the time elapsed remain the property of the State owning them at the time of their sinking unless it explicitly and formally relinquishes its ownership." 21

"Under international law of the sea all the sunken warships and government aircraft remain the property of their flag State." 22

"In accordance with Spanish and international law, Spain has not abandoned or otherwise relinquished its ownership or other interests with respect to such vessels and/or its contents, except by specific action pertaining to particular vessels or property taken by Royal Decree or Act of Parliament in accordance with Spanish law." 23

The United Kingdom declared that "State vessels and aircraft continue to enjoy sovereign immunity after sinking, unless they were captured by another State prior to sinking or the flag State has expressly relinquished its rights. The flag State's rights are not lost merely by the passage of time."


NILS Law Review

November, 2014

Vol. 1

applicability of the principle, i.e. the property rights to the wreck and its contents would vest with the state in perpetuity. Two main qualifications arise out of the international law principles for a vessel to afford the protection of sovereign immunity. Firstly, it must be owned or operated by the state; and that at the time of its loss, its activities were of a significant public character, non-commercial, and generally in the service of state interests, or fulfilling state policies. Modern day state policy is integrally linked with commercial and trade activities and thus retaining a ‗public character‘. Hence the same principle has been extended by various States to their fleet of merchant ships.24 Classification of ships into State and non-State vessels is crucial as it decides the set of rules that would apply to the wreck. State Vessels are afforded much higher protection. These include warships and government ships used for non-commercial purposes. A lot of literature is available as to the various laws and procedures applicable to such vessels. Warships are generally considered to be grave-sites of the soldiers25, moreover it might contain vital military or diplomatic material and naval technological modifications of a sensitive nature which may compromise national security.26 Thus, the applicability of the principle of sovereign immunity is seldom questioned in such instances. Non-state vessels include mainly include merchant and commercial vessels. Generally, these ships are not accorded any sovereign immunity. But recently, there has been considerable overlapping of sovereign functions into the commercial area. In the era of globalisation, it is becoming harder to distinguish between public and private functions undertaken by the State and thereby the problem in differentiating state vessels from state vessels engaged in commercial activity. States have started encroaching into what was till now considered as a sphere restricted to the individual. International trade and commerce has been on the rise over the recent years and this scenario is not going to change in the future. Therefore, the question arises as to how far can the concept be stretched and made applicable to such cases?27In a case that came up

24

Especially, the Netherlands have declared their ownership over the wrecks of the merchant fleets that were owned by the erstwhile Dutch East India Company; See generally, n 16, Rob Regan, 24 25

J. Ashley Roach, ‗Sunken warships and military aircraft‘ [1996] 20 Marine Policy 352

26

Rob Regan, ‗When Lost Liners Become Found: An Examination of the Effectiveness of Present Maritime Legal and Statutory Regimes for Protecting Historic Wrecks in International Waters with Some Proposals for Change‘ [2004-2005] 29 Tul. Mar. L.J. 313, 343 27

As early as 1919, Judge Learned Hand, in Gould Coupler Co. v United States Shipping Board Emergency Fleet Corp., 261 Fed. 716 (S.D.N.Y. 1919), observed as follows:


NILS Law Review

November, 2014

Vol. 1

before the US Supreme Court in the early 1920s, the Pesaro Case28, the Court went on to apply the test -whether the vessel was a public vessel devoted to a public purpose. However, around the same time period, the International Maritime Committee passed a resolution29 which in effect laid down the exact opposite of what was observed by the Supreme Court in The Pesaro- that state vessels engaged in private or commercial activities cannot be accorded the protection under sovereign immunity. This was approved by the Committee on Admiralty and Maritime Law in the 1923 Report of the American Bar Association.30 This shows the dichotomy that was existing at that time with respect to this issue. The nature and purpose test has been dealt with in greater detail in Section I of Part II. Another controversial area within this field is the status of armed merchant vessels and the laws applicable to them. Armed Merchant Vessels have been in the picture for centuries. During and around the 16thcentury, there was an era of privateering which has even been called legalised piracy. It was abolished by the Paris Declaration Respecting Maritime Law of 16 April 1856. Later, during both the World Wars, it was not uncommon for the States to acquire merchant ships and their employment, wholly or in part, through capture, requisition, or purchase. These ships were used for various commercial purposes over and above the fact that they were armed and had naval personnel employed on-board. The status of such merchant vessels had been the subject of consideration before the Courts of the United Kingdom in R v Secretary of State for Defence,31where the Court of Appeal established that the SS Storaa, an armed merchantman, which was sunk by a German E-boat torpedo in 1943 while in a military-escorted convoy, was in military service when it sank and therefore qualified for designation under the Protection of Military Remains Act 1986 (UK). The reasoning behind this judgment seems to be the fact that the ship was under the control and Moreover, it is in general highly desirable that, in entering upon industrial and commercial ventures, the governmental agencies used should, whenever it can fairly be drawn from the statutes, be subject to the same liabilities and to the same tribunals as other persons or corporations similarly employed. The immunity of the sovereign may well become a serious injustice to the citizen, ifit can be claimed in the multitude of cases arising from governmental activities whichare increasing so fast. 28

Berizzi Bros Co v The Pesaro, 271 U. S. 562 (1926). See also: Frederic Rockwell Sanborn, ‗The Immunity of Merchant Vessels when owned by Foreign Governments‘, (1926-1927) 1 St. John's L. Rev. 5 29

Resolution unanimously passed at the meeting of the International Maritime Committee held at Gothenburg, Sweden, in August, 1923. 30

31

See Frederic Rockwell Sanborn, n 29, 15

R v Secretary of State for Defence [2006] EWCA Civ 1270; See: Craig Forest,‗Historically and Culturally Sensitive Ships‘ [2012] 26 A&NZ Mar LJ 80


NILS Law Review

November, 2014

Vol. 1

command of the commander of the naval ship leading the convoy and at the time it sank each ship was providing armed protection for both the cargo and the convoy. Consequently, most wrecks of the merchant vessels that were used in the World War II can be brought under the ambit of ―war-graves‖. Even today, armed merchant vessels are not an unusual sight. The usual justification given is to protect the vessel and crew from acts of piracy. These vessels have on board private guards. Recently, The U.K. Prime Minister, David Cameron in 2011 declared that the home secretary would be given the power to license armed guards for ships. 32 This was a step taken to combat the risks to shipping off the coast of Somalia, where most of the piracy incidents have been reported in the past few years. The Maritime Safety Committee (MSC) of International Maritime Organisation (IMO) had issued interim guidelines in this regard especially with respect to enhancing Maritime Security in and around West and Central African Coast at its 89th session from 11 to 20 May 2011. These guidelines have approved the use of privately contracted armed security personnel on board ships in the High Risk Area33and it also includes guidance to ship-owners, ship operators, and shipmasters on the use of privately contracted armed security personnel (PCASP) on board ships in the High Risk Area. Both sets of guidance are aimed at addressing the complex issue of the employment of private, armed security on board ships. These guidelines are however subject to the flag State jurisdiction and any laws and regulations imposed by the flag State concerning the use of such private security companies. Port and coastal states‘ law may also apply to such vessels. What law would be applicable to such vessels in case they sink to the bottom of the ocean is again a pertinent issue and the application of the principle of sovereign immunity is, at the least, questionable.

32

The Department of Transport, Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances, Version 1.2, available at<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/204123/use-of-armed-guardsto-defend-against-piracy.pdf> Accessed 25 March 2014 33

(MSC.1/Circ.1406)


NILS Law Review

November, 2014

Vol. 1 PART II

‘The Commercial Activity’ Exception to Sovereign Immunity In the international law regime various treaties and conventions34 confer sovereign immunity over state owned ships and consequently their wrecks35. A cursory reading of these provisions makes it clear that the immunity is not bestowed upon all state vessels but only on ones used in government non-commercial service. In other words the states all over the world, negating the principle of par in parem non habet imperium36, apply principle of restrictive sovereign immunity37 whenever a foreign government requests a grant of immunity in any particular case, i.e. the courts will look into the facts and circumstances of each case to determine whether the acts of the state involved was public (jure imperii), or private (jure gestionis) in nature. This distinction between acts jure imperii and acts jure gestionis, which are regarded by the common law state as governmental and commercial acts respectively, is pivotal in the court's determination of the applicability of sovereign immunity. The application of this distinction leads to considerable difficulties especially in the cases of wrecks. Identifying these problems arising at the international regime coupled 34

International Convention on Salvage (adopted 28 April 1989, entered into force 14 July 1996), 1953 UNTS 193, Article 4(2); UNESCO Convention on the Protection of the Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009), 31st Session, U.N. Doc. 31 C/24 (2001), Article 2 (8); Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962), 450 UNTS 11, Articles 8-9; United Nation Convention on the Law of the Seas Convention, (adopted 10 December 1982, entered into16 November 1994), 1833 UNTS 3, articles 95-96 35

J Ashley Roach, ‗Sunken warships and military aircraft‘ [1996] 20 No. 4 Marine Policy 351; Caflisch, ‗Submarine Antiquities and the International Law of the Sea‘[1982] 13 Neth. Y.B. Int'l L 3; Migliorino, ‗The Recovery of Sunken Warships in International Law‘ in B. Vukas, edn, Essays on the New Law of the Sea, (1985) 250, 251. See also Gardner v Ninety-Nine Gold Coins, 111 Fed. 552, 553 (D. Mass. 1901); United States v Steinmetz, 973 F.2d 212, 1992 AMC 2879 (3rd Cir. 1992) (U.S.A, Cir.); Sea Hunt, Inc. v Unidentified Shipwrecked Vessel or Vessels 221 R. 3d 634 (4th Cir. 2000) (U.S.A, Cir.).; Lusitania Cases (United States v Germany) (1923) RIAA 7, 32; Nakhimov case ‗War and Neutrality -Right to a Captured Vessel-SS AdmiralNakhimov‘ (1986) 29 Jap. Ann. Of Int'l L. 74, 185-87. 36

Lauterpacht, ‗The problem of Jurisdictional Immunities of Foreign States‘, [1951]28 British Year Book of International Law 220, 248 37

Foreign Sovereign Immunities Act 1976 (US);State Immunity Act 1978 (U.K.); The European Convention on State Immunity (adopted 16 May 1972, entered into force 11 June 1976) 1495 U.N.T.S. 181; J. A. Paulson, ‗Sovereign Immunity from Execution in France‘, [1979] 11 Int. L. 673; Braden Copper Co v Groupementd'lmportation des Metaux [1973] 100 Clunet 227; C. J. Hamson, ‗Immunity of Foreign States: Practice of French Courts‘, [1950] 27 B.Y.I.L. 293; L. Condorelli and L. Sbolci, ‗Measures of Execution Against the Property of Foreign States: The Law and Practice in Italy‘ [1979] 10 Netherlands Y.B.I.L.197; Francischiello v USA [1959] 28 ILR 158; R. Gori-Montanelli and D.Botwinik, ‗Sovereign Immunity in Italy‘, [1976] 10 Int Lawyer 451;DhbellemesetMasural vBanqueCentrale de la Republique de Turquie, [1967] 94 Clunet 148; J. Verhoeven, ‗Immunity from Execution of Foreign States in Belgian Law‘, [1979] 10 Netherlands Y.B.I.L. 73; Socobel v GreekState, [1951] 18 I.L.R. 3.


NILS Law Review

November, 2014

Vol. 1

with the fact that the difficulties may multiply if distinction were to be based on value judgment38, many domestic legislations like State Immunity Act 1978 (U.K.) and the European Convention on State Immunity have tried to reduce the dependence on the term ‗commercial‘ and have stipulated various situations in which immunity may be refused. Similar effort has been made by courts of various counties, like Belgium 39, Germany40, USA41, UK42, Switzerland43 etc., to prepare such lists. Stipulating the exact situations where the doctrine should be applied, no doubt makes the application of the doctrine much easier but this does not provide a satisfactory way to deal with a problem. The practical application is very complex, to be reflected in a list, irrespective of its exhaustive nature 44. Thus it is impossible to pigeonhole various acts of the government. NATURE AND PURPOSE TEST The early answers to the problem of distinguishing between actum jure gestionis and actum jure imperii, were the purpose45 and the nature test46.These approaches prima facie seem to provide a sound ground for jure imperii to be distinguished from jure gestion is but there exists a huge gap between theory and practice of the rule. The purpose approach classifies as jure imperii only those acts which have a "public purpose." The "purpose" test creates several 38

Ian Brownlie, Principles of Public International Law(3rdedn, Oxford University Press, 2008) 332-33

39

Sociétév .Banque , Belgium, (1963)45 IL 85 ―Regulating external trade, decreeing measures for the protection of the currency, concluding trade and foreign agreements with foreign countries, ordering or forbidding transfer of currency- all these constitutes acts if executive power , since, in such cases the state… is exercising its governmental authority.‖ 40

Empire of Iran Case, Germany, [1963] 45 ILR 57, quoted in Propend v Sing, England [1997] 111 IL 611, 667. ―In the generally recognizable field of sovereign activity are included the transactions relating o foreign affairs and military authority, the legislature the exercise of police authority and administration of justice.‖ 41

Victory Transport Inc v Comisaria Gen, 336 F.2d 354,358 (2d Cir. 1964), ‗category of strictly political and public Act‘ include ― (i) Internal administrative acts, such a expulsion of alien(ii) legislative acts , such as nationalization(iii) acts concerning armed forces (iv) acts concerning diplomatic activity (v) public loans 42

Rahimtoola v Nizam , England, 1957,[1958] AC 379 ― If the dispute brings into question, for instance the legislative or international transactions of a foreign government, or the policy of its executive, the court should grant immunity.‖ 43

République Y v X, Switzerland, 2000,11 RSDIE(2001) 589

44

Xiaodong Yang, State Immunity in International Law, (Cambridge University Press,2012),81

45

Followed in Re Canada Labour Code Case(Canada) [1990] 1 FC 332, Rumani v Trutta, (Italy) [1926] 6 AJIL Supplements (1932) 626, US v Bracale, Italy, [1968] 65 ILR 273 46

Criterion suggested by Weiss in ‗Competence oul'incompetence des Tribunaux a legard des Etatsetrangers‘, [1923], Hague Academy of International Law, Recueil des Cours, 525.


NILS Law Review

November, 2014

Vol. 1

difficulties, the greatest perhaps being that each nation views trade differently47.As a matter of fact sovereign is always acting for public purpose even while engaging in sovereign activities or at least it can be argued so by the states48. Moreover whenever a court has to examine whether the impugned act has a public purpose or not, the decision will be affected by the personal notions of the judges. This made the purpose test very unsatisfactory. The nature test which was adopted by the FSIA49 (US), though more favoured50 than the former, also does not provide a substantial solution. The nature test requires the courts to inquire whether the nature i.e. the outward form of the conduct that the foreign state performs or agrees to perform, is commercial i.e. "the fact that goods or services to be procured through a contract are to be used for a public purpose is irrelevant; it is the essentially commercial nature of an activity or transaction that is critical.‖51 This approach has also not gone without criticism it has been argued that in the modern day world, because of multiplicity of activities of the state, it has become impossible to differentiate sovereign acts according to their public or private nature.52This ambiguity can be seen from the two cases53 where the Italian court refused immunity to Romania by classifying buying of supplies and munitions for military as non- sovereign function54 whereas the American courts regarded the activity of buying shoes for military purpose as ‗ highest sovereign function‘.55

47

Michael G. Cosby, ‗"Commercial Activity" Under The Foreign Sovereign Immunities Act Of 1976: Toward A More Practical Definition‘[1982] 34 Baylor L. Rev. 295; see also Michael Brandon,‗The Case Against the Restrictive Theory of Sovereign Immunity‘, [1954] 21 Ins. Counsel J. 11 48

49

See n 39 128 U.S.C. §§ 1330, 1332(a), 1391(f), 1602-11 (1976)

50

Section 1603(d) Foreign State Immunity Act, Ibid; Rafidian v Consarc, Belgium, (1993) 106 ILR 274, Collision Case , Austria (1961) 40 ILR 73; Empire of Iran Case , see n 41; UAR v Mr X , Switzerland (1960) 65 ILR 131, Russian Federation v Pied- Rich, Netherlands, 1993, 41,NILR (1994) 116; Dismoto Massacre case, Greece, (2000) 129 ILR 235; UK v Joel, Nigeria, (1998) 103 ILR 299 51

Congressional Report, H.R. REP. No. 94-1487, 94th Cong., 2d Sess. 17, reprinted in 1976 U.S. Code Cong. & Ad. News 6604, 6616 at 6615; see also State Immunity Act, 1978, c. 33, at 717 (1978) 52

53

Fox, ‗Competency of Courts in regard to ―Non Sovereign‖ acts,‘ [1941] 35 AJIL 632, 637 See n 48

54

See Fitzmaurice, ‗State Immunity from Proceedings in Foreign Courts‘, [1933] 14 BYL 101,123.

55

Kingdom of Romania v Guaranty Trust Co, 250 F.2d 341, 345 (2d Cir. 1918),


NILS Law Review

November, 2014

Vol. 1

Mr Justice Van Devanter in his opinion in the Pesaro Case56, trying to eliminate the illusion of private and public act, has said that: "We think the principles [announced in Schooner Exchange v McFaddon with regard to sovereign immunity] are applicable alike to all ships held and used by a government for a public purpose, and that when, for the purpose of advancing the trade of its people or providing revenue for its treasury, a government acquires, mans, and operates ships in the carrying trade, they are public ships in the same sense that warships are. We know of no international usage which regards the maintenance and advancement of the economic welfare of a people in time of peace as any less a public purpose than the maintenance and training of a naval force.â&#x20AC;&#x2013;57 The supporters of the Nature test point out that the element to be emphasized is the commercial nature of the transaction, as opposed to the motivation or the aim of the transaction or business58 but an inquiry into the nature of an activity necessarily requires some examination of its purpose59. Even the legislators of the Foreign State Immunity Act had in the back of their minds that the

purpose of the act should also be taken into

consideration to determine the nature of the act and as a the result, they stated that If an activity is customarily carried on for profit, its commercial nature can be readily assumed.60 Thus to determine the nature of the act of the sovereign the court would have to look into the very purpose of it.61

56

271 U.S. 562

57

ld. at 573-74,

58

Sompon Sucharitkul, â&#x20AC;&#x2014;Preliminary report on the topic of jurisdictional immunities of States and their propertyâ&#x20AC;&#x2DC;, [1979] vol. II(1), Yearbook of the International Law Commission , 241;See also Trendtex Trading Corporation Ltd v Central Bank of Nigeria, ASIL, International Legal Materials (Washington, D.C.), vol. XVI, No. 3 (May 1977) 59

See n 45 , 87

60

Report No. 94-1487, 1976,p. 16/6615

61

See n 45


NILS Law Review

November, 2014

Vol. 1

TWO STEP ANALYSIS OF COMMERCIAL ACTIVITY EXCEPTION The continued judicial efforts to establish a homogeneous interpretation of what constitutes "commercial activity" culminated in the emergence of the "private person" test. The American Supreme Court in the Weltover62 case, while determining whether issuing of Bonds, as part of financial reconstruction, is a commercial activity or not, established the rule and said that: ―..the question is not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that the foreign state performs, are the type of actions by which a private party engages in trade and traffic or commerce” 63 In simpler words the act will be regarded as a sovereign act if only a sovereign could engage in such activities but if a private person or party can also engage in such activities then it is commercial in nature. This test leads to very broad interpretation to be adopted by courts.64This can be illustrated by the Texas Trading & Milling Corporation v Republic of Nigeria65 and Weltover Incorporated v Republic of Argentina66. In the latter case, an attempt on the part of Argentina to salvage their currency by issuing bonds to foreign creditors were termed as commercial in nature and applying the same test purchase of cement for building military barracks by Nigeria were also classified as commercial. Applying the ‗private person test‘, many European courts have held that contracts for supply of bullets, shoes for army67 and material required for making military barricades68 and bunkers or issuing bonds for economic reconstruction69 as jure gestionis.70The sole reason

62

60 U.S.L.W. 4510

63

Id at 614

64

M Mofidi, ‗The Foreign Sovereign Immunities Act and the "Commercial Activity" Exception: The Gulf between Theory and Practice‘, [1999] 5 J. Int'l Legal Stud. 95 65

647 F.2d 300, 308 (2d Cir. 1981)

66

See n 63

67

See n 56

68

See n 57

69

See n 63


NILS Law Review

November, 2014

Vol. 1

behind these decisions was that even a private person could perform the same activities. Logically extended, this test could accomplish the complete abolition of sovereign immunity71. In addition the application of this rule leads to a situation where sovereign can never claim immunity in certain cases like breach of contract72 thereby forming a per se rule . But in no sooner than a year, the Supreme Court in the case of Saudi Arabia v Nelson73made attempts to reduce the scope of the ‗Private person test‘. In this case, a tort claim was brought against Kingdom of Saudi Arabia by Nelson, who was employed in a government owned hospital in Saudi. It was alleged that while performing his duties as a monitor of safety facilities Nelson reported certain safety violations in retaliation to which he was imprisoned and tortured by the authorities. The court in the case held that before it could be ascertained whether the kingdom of Saudi Arabia was engaged in commercial activities or not, it is expedient to identify the specific act of the sovereign on which the suit or claim was based. Thus the court provided the ‗based upon test‘ which was to be the first step in commercial activity analysis. The Court identified the personal injuries and intentional torts alleged in the Nelsons' complaint as the activities forming the suit. The Court concluded that such activities did not qualify as commercial under the exception. Therefore the analytical frameworks set forth in the Weltover and the Nelson case requires a two-step analysis to determine the nature of the act.74The ‗Based upon test‘ also fails to provide the substantial solution for two reasons. Firstly, this test seems to balance the broad interpretation given to commercial exceptions by court using the private person test, by providing an extreme solution. The Nelson test provides enough scope for nations to cloak their commercial activity under a single sovereign act. It has been argued that an act by a sovereign body, although during the course of or as a direct result of this commercial activity, can eliminate the "commercialness" of the claim.75 Secondly, the ‗based upon test‘ is not a complete solution in itself. The final 70

Victory Transports, Inc v Comisaria General de AbastecimientosyTransportes, 336 F.2d 354 (2d Cir. 1964) at 359 71

See n 39

72

Joan E. Donoghue, Taking the "Sovereign" Out of the Foreign Sovereign Immunities Act: A Functional Approach to the Commercial Activity Exception,17 Yale J. Int'l L. 489 (1992) 73

507 U.S. 349 (1993) ; See also Texas Trading & Milling, see n 66

74

Zhen Song, ‗Going For Gold: The Meaning Of "Commercial Activity" In The Foreign Sovereign Immunities Act In The Race For Buried Treasure In Sunken Shipwreck‘ [2012-13]62 Am. U. L. Rev. 177 75

Amelia L. McCarthy, ‗The Commercial Activity Exception – Justice Demands Congress Define a Line in the Shifting Sands of Sovereign Immunity‘, [1994] 77 Marq. L. Rev. 93


NILS Law Review

November, 2014

Vol. 1

outcome is the result of the Private person test which allows the discrepancies of the private person test to creep in. TWO STEP ANALYSIS IN ADMIRALTY CASES Courts in the absence of any alternative have applied this two-step analysis, which was a byproduct of two non-admiralty cases, to an admiralty case but a strict application of these tests have led to unreasonable and vague results. This can be seen in the Odyssey76 case or as it is popularly known as the black swan case. Odyssey Marine Exploration, Inc. (Odyssey) brought an in rem action against a wrecked 19th Century Spanish vessel, Nuestra Senora de las Mercedes, located in â&#x20AC;&#x2022;international watersâ&#x20AC;&#x2013; west of the Straits of Gibraltar. The Spanish Government objected to it and claimed sovereign immunity over the vessel. The court applying the two step analysis turned to the facts of the case to determine the act on which the claim was based upon. It was noted that the ship before it sank had been dispatched to the port of El Callao in Lima, part of the Spanish Viceroyalty of Peru, to collect and bring back to peninsular Spain specie and other precious cargo77, which the court considered to be the act, upon which the claim was based.78Now if the court had applied the private person test in its strict sense, the Supreme Court should have rejected the immunity to the Spanish government as any other private shipping company could have transported commercial cargo and thus the claim of the Spanish government would have fallen under the commercial activity exception. However, the court rather than applying the private person test in its true essence, was leaned towards the fact that the ship was a warship manned by naval crew and had been armed with guns79. The court held that the Mercedes' transportation of private cargo for a fee was a distinctly sovereign act because historians claimed that one of the military functions of the Spanish Navy in times of war or threatened war was to protect Spanish citizens and their property80.

76

77

Odyssey Marine Exploration, Inc v Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1166-68 (llth Cir. 2011), Ibid, D. C. Docket No. 8:07-cv-00614-SDM-MAP

78

Ibid

79

Ibid

80

Ibid; see also Appellant's Reply Brief at 6, Odyssey, 657 F.3d 1159 (No. 10-10269-J), 2010


NILS Law Review

November, 2014

Vol. 1

On this point many jurists have been very critical of the court and have argued that the court did not apply the test in the Nelson and the Weltover case.

81

However it can be argued that

the court‘s departure from the strict sense of the two step analysis was indeed what was required in the case at hand. If the test in the Weltover case were to be applied strictly in the Odyssey case the court should not have rejected Odyssey Marine's commercial activity argument which in turn would have totally defeated the very purpose of granting immunity to sunken warships and certain state vessels. As discussed earlier, warships are of strategic importance for the flag State, since it may have on board instruments valuable for the State‘s security which may be endangered if the recovery is made by another State, as the case of Glomar Explorer82 shows. For this reason sunken warships enjoy sovereign immunity.83If these tests are to be applied to cases of wrecks of warships then the entire purpose of immunity may be defeated as no regard is paid to the security of a state or the graves of navy men. "Commercial activity" has been defined as "either a regular course of commercial conduct or a particular commercial transaction or act.‖84 Thereby implying even a single act on the part of a warship which can also be done by a private party will deprive the ship and its wreck of immunity, irrespective of the fact that the wreck might have sensitive information or whether it is a grave site of soldiers. Even under the Article 96 of the UNCLOS III state vessel ―owned or operated by a State and used ‗only‘ on government non-commercial service‖ are considered immune from jurisdiction of other courts. The word ‗only‘ suggest that if a state vessel is engaged in an isolated act of commercial nature, it would deprive it of its immunity. But just because a warship is involved in a single act of commercial nature it does not cease 81

Ibid

82

The Glomar Explorer affair. The United States, in 1968, tried to recover a Soviet submarine sunken some 750 miles off the Hawaii, that they considered as having great military value; See Fredrick A. Eustis III, ‗ The Glomar Explorer Incident: Implication for the law of Salvage‘[1975] 16 Va.J Int‘l L. 177 83

NatalinoRonzitti, ‗The Legal Regime of Wrecks of Warships and Other State-owned Ships in International Law‘,[2011] Vol. 74 ,Yearbook of Institute of International Law; See also Rob Regan, ‗When Lost Liners Become Found: An Examination of the Effectiveness of Present Maritime Legal and Statutory Regimes for Protecting Historic Wrecks in International Waters with Some Proposals for Change‘[2004-05] 29 Tul Mar LJ 313, 333 84

Foreign State Immunity Act 1976, 28 USC § 1603(d) (USA); Draft Convention on State Immunity, International Law Association, Article I(C); State Immunity Act 1985, RSC, 1985, c. S-18 (Canada)


NILS Law Review

November, 2014

Vol. 1

to be a warship. Thus, the private person test, when applied in admiralty cases, especially ones involving ship wrecks, may lead to undesirable results. While dealing with the immunity over wrecks solely considering the commercial activity aspect and not paying any heed to the purpose of immunity over such wrecks may lead to undesirable results. PART III WAY FORWARD It is to be borne in mind that there is no all-encompassing and all useful tests which can take all the relevant elements into consideration. The primary reason for this is that it is very difficult to take into consideration all relevant facts and factors, which differ from case to case. Generally the tests which have been evolved, primarily in the US, stress more upon the nature of transaction than the motive or the purpose. It is argued that the purpose cannot be completely ignored. This can be better explained with an example where, country A contracts with country B to purchase military boots, and just because a private individual can enter into a sale purchase contract or can contract to buy boots, this contract would be said to be commercial in nature, irrespective of the profits or financial gains, which is the very essence of the term ‗commercial‘. Commercial is defined as ‗connected with or engaged in commercial activities; mercantile; having profit as the main aim.‘85 Therefore, when a sovereign acts to make profit, only then can its acts be commercial. The importance of ‗profit motive‘ in determining the commercial nature of a sovereign act can be seen from the words of US legislators. They remarked in a report relating to FSIA that if an activity is customarily carried for profit, then its commercial nature can be readily assumed.86 However the profit motive singularly does not provide a complete test. The private person test laid down in the Weltover case87 stipulates that if the impugned act can be done by a private party then the act is commercial. Instead, it would be more logical if the acts of the sovereign are pitted against that of another sovereign and not of a private party. Thus if sovereigns all over the globe, generally engage in acts identical or similar to that of the impugned act, then such acts should be immune.

85

Tapash Gan Choudhary, ‗Mitra‘s Legal and Commercial Dictionary‘(6 thEdn, Eastern Law House 2006); See also Laxmi Engineering Works v PSG Industrial Institute AIR 1995 SC 1428 86

See n 45

87

See n 39


NILS Law Review

November, 2014

Vol. 1

In addition it shall be pertinent to note that while adjudicating upon the issue of sovereign immunity over wrecks, the relevant factors which need to be taken into consideration may vary. Travaux prĂŠparatoires collected by Institute of International Law states that the very aim behind giving immunity to wrecks of ship wrecks is that a sovereign for its own security would need to protect the sensitive information the ship might carry, like instruments, military technology, maps etc.

88

This very purpose should be the main yardstick in

determining immunity over wreck of a state ship. The test or the views suggested in this article do not give any irrefutable method of analysing the commercial activity exception. Until such a test comes into existence the entire mantle is upon the courts to determine the claims of sovereign immunity. The courts should ensure that while determining the questions relating to sovereign immunity there is appropriate findings of fact and conclusions of law, which could be relied upon by an appellate court to reexamine its legal significance de novo.89 This will not only reduce the arbitrariness but will also lead to consistency equivalent to that of lists (as in case of State Immunity Act 1978 (U.K.) and the European Convention on State Immunity), without compromising on the flexibility.

88

See n 84

89

Michael G. Cosby, See n 48


NILS Law Review

November, 2014

Vol. 1

The Myth of International Rule of Law - In context to the Kadi Decision Om Prakash Gautam1

Introduction Kadi decisions of the Court of First Instance (CFI)2 and the European Court of Justice (ECJ)3 followed the two theories of relationship of Municipal Law and International Law i.e.; Monist and Dualist theory. The CFI placed Community law in a firm hierarchy of international law norms at the apex of which stands the UN Charter. The ECJ, determined that the EU is a self-contained order, whose highest constitutional norms determine irrevocably the outer limits of its competence.4 The ECJ‘s conclusions and reasoning raise fundamental questions concerning regime conflict and fragmentation in international law. Since the effectiveness of sanctions imposed by the Security Council depends to a large extent on their implementation in domestic law, the judicial review of such implementing measures at the national or regional level may deprive those sanctions of what the ECJ might otherwise term their ‗effet utile‘.5 This Paper seeks to examine the relationship between European Union law and international law in light of Kadi decision of the European Court of Justice ("ECJ") and the Court of First Instance ("CFI") relating to economic sanctions against individuals.

1

Assistant Professor at Damodaram Sanjivayya National Law University, Visakhapatnam. Author can be contacted at opgautam.rmlnlu@gmail.com. 2

Judgments of the General Court of 21 September 2005 in Case T-306/01 Yusuf and Al-Barakaat International Foundation v Council and Commission and Case T-315/01 Kadi v Council and Commission. 3

Judgment of the Court of 3 September 2008 in Joined Cases C-402/05 P and C-415/05 P Kadi and Al-Barakaat International Foundation / Council and Commission. 4

Takis Tridimas & Jose A. Gutierrez-Fons, EU Law, International Law and Economic Sanctions Against Terrorism: The Judiciary in Distress?, (2009) Scholarly Works. Paper 31, Available at http://elibrary.law.psu.edu/fac_works/31 (Last Accessed on August 24, 2014). 5

Aurel Sari, The Relationship between Community Law and International Law after Kadi: Did the ECJ Slam the Door on Effective Multilateralism?, Available at available at: http://ssrn.com/abstract=1635759 (Last Accessed on August 24, 2014).


NILS Law Review

November, 2014

Vol. 1 Case Background

This began in aftermath of the attacks on the American Embassy in Africa in 1998, the UN Security Council adopted a series of decisions directed against al-Qaeda. On 15 October 1999 the Security Council adopted Resolution 1267 (1999)6, in which it, inter alia, condemned the fact that Afghan territory continued to be used for the sheltering and training of terrorists and planning of terrorist acts, reaffirmed its conviction that the suppression of international terrorism was essential for the maintenance of international peace and security and deplored the fact that the Taliban continued to provide safe haven to Osama bin Laden and to allow him and others associated with him to operate a network of terrorist training camps from territory held by the Taliban and to use Afghanistan as a base from which to sponsor international terrorist operations. In the second paragraph of the resolution the Security Council demanded that the Taliban should without further delay turn Osama bin Laden over to appropriate authorities in a country where he has been indicted, or to appropriate authorities in a country where he will be arrested and effectively brought to justice. In order to ensure compliance with that demand, paragraph 4(b) of Resolution 1267 (1999) provides that all the States must, in particular, „freeze funds and other financial resources, including funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as designated by the Committee established by paragraph 6 below, and ensure that neither they nor any other funds or financial resources so designated are made available, by their nationals or by any persons within their territory, to or for the benefit of the Taliban or any undertaking owned or controlled, directly or indirectly, by the Taliban, except as may be authorised by the Committee on a case-by-case basis on the grounds of humanitarian need‟. In paragraph 6 of Resolution 1267 (1999), the Security Council decided to establish, in accordance with rule 28 of its provisional rules of procedure, a committee of the Security Council composed of all its members („the Sanctions Committee‟), responsible in particular for ensuring that the States implement the measures imposed by paragraph 4, designating the funds or other financial resources referred to in paragraph 4 and considering requests for exemptions from the measures imposed by paragraph 4.

6

UN Security Council, Resolution 1267 (1999) Adopted by the Security Council at its 4051st meeting on 15 October 1999, 15 October 1999, S/RES/1267 (1999), available at: http://www.unhcr.org/refworld/docid/3b00f2298.html (Last Accessed on August 24, 2014).


NILS Law Review

November, 2014

Vol. 1

Taking the view that action by the Community was necessary in order to implement Resolution 1267 (1999), on 15 November 1999 the Council adopted Common Position 1999/727/CFSP concerning restrictive measures against the Taliban7. Article 2 of that Common Position prescribes the freezing of funds and other financial resources held abroad by the Taliban under the conditions set out in Security Council Resolution 1267 (1999) 8. On 14 February 2000, on the basis of Articles 60 EC and 301 EC, the Council adopted Regulation (EC) No 337/2000 concerning a flight ban and a freeze of funds and other financial resources in respect of the Taliban of Afghanistan.9 On 19 December 2000 the Security Council adopted Resolution 1333 (2000)10, demanding, inter alia, that the Taliban should comply with Resolution 1267 (1999)11, and, in particular, that they should cease to provide sanctuary and training for international terrorists and their organisations and turn Usama bin Laden over to appropriate authorities to be brought to justice. The Security Council decided, in particular, to strengthen the flight ban and freezing of funds imposed under Resolution 1267 (1999). On 26 February 2001 the Council adopted Common Position 2001/154/CFSP concerning additional restrictive measures against the Taliban and amending Common Position 96/746/CFSP.12 On 6 March 2001, on the basis of Articles 60 EC and 301 EC, the Council adopted Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation No 337/2000.13 Annex I to Regulation No 467/2001 contains the list of persons, entities and 7

OJ 1999 L 294, p. 1.

8

UN Security Council, Resolution 1267 (1999) Adopted by the Security Council at its 4051st meeting on 15 October 1999, 15 October 1999, S/RES/1267 (1999), available at: http://www.unhcr.org/refworld/docid/3b00f2298.html (Last Accessed on August 24, 2014). 9

OJ 2000 L 43, p. 1.

10

UN Security Council, Resolution 1333 (2000) / adopted by the Security Council at its 4251st meeting, on 19 December 2000 , 19 December 2000, S/RES/1333(2000) , available at: http://www.unhcr.org/refworld/docid/3b00f51e14.html (Last Accessed on August 24, 2014). 11

UN Security Council, Resolution 1267 (1999) Adopted by the Security Council at its 4051st meeting on 15 October 1999, 15 October 1999, S/RES/1267 (1999), available at: http://www.unhcr.org/refworld/docid/3b00f2298.html (Last Accessed on August 24, 2014). 12

OJ 2001 L 57, p. 1.

13

OJ 2001 L 67, p. 1.


NILS Law Review

November, 2014

Vol. 1

bodies affected by the freezing of funds imposed by Article 2. Under Article 10(1) of Regulation No 467/2001, the Commission was empowered to amend or supplement Annex I on the basis of determinations made by either the Security Council or the Sanctions Committee. On 8 March 2001 the Sanctions Committee published a first consolidated list of the entities which and the persons who must be subjected to the freezing of funds pursuant to Security Council Resolutions 1267 (1999)14 and 1333 (2000)15.16 That list has since been amended and supplemented several times. The Commission has in consequence adopted various regulations pursuant to Article 10 of Regulation No 467/2001, in which it has amended or supplemented Annex I to that regulation. On 17 October and 9 November 2001, the Sanctions Committee published two new additions to its summary list, including in particular the names of the following entity and person: 

„Al-Qadi, Yasin (A.K.A. Kadi, Shaykh Yassin Abdullah; A.K.A. Kahdi, Yasin), Jeddah, Saudi Arabia‟, and

„Barakaat International Foundation, Box 4036, Spånga, Stockholm, Sweden; Rinkebytorget 1, 04, Spånga, Sweden‟.

By Commission Regulation (EC) No 2062/2001 of 19 October 2001 amending, for the third time, Regulation No 467/200117, Mr. Kadi‘s name was added, with others, to Annex I. By Commission Regulation (EC) No 2199/2001 of 12 November 2001 amending, for the fourth time, Regulation No 467/200118, the name Al-Barakaat was added, with others, to Annex I. On 16 January 2002 the Security Council adopted Resolution 1390 (2002)19, which lays down the measures to be directed against Osama bin Laden, members of the Al-Qaeda 14

UN Security Council, Resolution 1267 (1999) Adopted by the Security Council at its 4051st meeting on 15 October 1999, 15 October 1999, S/RES/1267 (1999), available at: http://www.unhcr.org/refworld/docid/3b00f2298.html (Last Accessed on August 24, 2014). 15

UN Security Council, Resolution 1333 (2000) / adopted by the Security Council at its 4251st meeting, on 19 December 2000 , 19 December 2000, S/RES/1333(2000) , available at: http://www.unhcr.org/refworld/docid/3b00f51e14.html (Last Accessed on August 24, 2014). 16

The Committee‘s press release AFG/131 SC/7028 of 8 March 2001.

17

OJ 2001 L 277, p. 25.

18

OJ 2001 L 295, p. 16.

19

UN Security Council, Security Council resolution 1390 (2002) on the situation in Afghanistan, 16 January 2002, S/RES/1390 (2002), available at: http://www.unhcr.org/refworld/docid/3c4e83d34.html (Last Accessed on August 24, 2014).


NILS Law Review

November, 2014

Vol. 1

network and the Taliban and other associated individuals, groups, undertakings and entities. Paragraphs 1 and 2 of that resolution provide, in essence, for the continuance of the measures freezing funds imposed by paragraphs 4(b) of Resolution 1267 (1999)20 and 8(c) of Resolution 1333 (2000)21. In accordance with paragraph 3 of Resolution 1390 (2002)22, those measures were to be reviewed by the Security Council 12 months after their adoption, at the end of which period the Council would either allow those measures to continue or decide to improve them. On 27 May 2002 the Council adopted Common Position 2002/402/CFSP concerning restrictive measures against Osama bin Laden, members of the Al-Qaeda organisation and the Taliban and other individuals, groups, undertakings and entities associated with them and repealing Common Positions 96/746, 1999/727, 2001/154 and 2001/771/CFSP.23 On 27 May 2002 the Council adopted the contested regulation on the basis of Articles 60 EC, 301 EC and 308 EC. Annex I to the contested regulation contains the list of persons, groups and entities affected by the freezing of funds imposed by Article 2 of that regulation. That list includes, inter alia, the names of the following entity and persons: 

Al-Barakaat International Foundation; Box 4036, Spånga, Stockholm, Sweden; Rinkebytorget1, 04, Spånga, Sweden‟, and

„Al-Qadi, Yasin (alias KADI, Shaykh Yassin Abdullah; alias KAHDI, Yasin), Jeddah, Saudi Arabia‟.

Mr. Kadi and Al-Barakaat both brought actions seeking annulment of Regulation No 467/2001, the former seeking annulment also of Regulation No 2062/2001 and the latter annulment also of Regulation No 2199/2001, in so far as those measures concern them. In support of his claims, Mr. Kadi put forward in his application before the Court of First

20

UN Security Council, Resolution 1267 (1999) Adopted by the Security Council at its 4051st meeting on 15 October 1999, 15 October 1999, S/RES/1267 (1999), available at: http://www.unhcr.org/refworld/docid/3b00f2298.html (Last Accessed on August 24, 2014). 21

UN Security Council, Resolution 1333 (2000) / adopted by the Security Council at its 4251st meeting, on 19 December 2000 , 19 December 2000, S/RES/1333(2000) , available at: http://www.unhcr.org/refworld/docid/3b00f51e14.html (Last Accessed on August 24, 2014). 22

UN Security Council, Security Council resolution 1390 (2002) on the situation in Afghanistan, 16 January 2002, S/RES/1390 (2002), available at: http://www.unhcr.org/refworld/docid/3c4e83d34.html (Last Accessed on August 24, 2014). 23

OJ 2002 L 139, p. 4.


NILS Law Review

November, 2014

Vol. 1

Instance three grounds of annulment alleging, in essence, breaches of his fundamental rights. The first alleges breach of the right to be heard, the second, breach of the right to respect for property and of the principle of proportionality, and the third, breach of the right to effective judicial review. Perspective of Court of First Instance Examining the relationship between the international legal order under the United Nations and the domestic legal orders or the Community legal order, the Court of First Instance ruled that, from the standpoint of international law, the Member States, as Members of the United Nations, are bound to respect the principle of the primacy of their obligations „under the Charter‟ of the United Nations, enshrined in Article 103 thereof, which means, in particular, that the obligation, laid down in Article 25 of the Charter, to carry out the decisions of the Security Council prevails over any other obligation they may have entered into under an international agreement.24 According to the Court of First Instance, that obligation of the Member States to respect the principle of the primacy of obligations undertaken by virtue of the Charter of the United Nations is not affected by the EC Treaty, for it is an obligation arising from an agreement concluded before the Treaty, and so falling within the scope of Article 307 EC. What is more, Article 297 EC is intended to ensure that that principle is observed.25 The Court of First Instance concluded that resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations are binding on all the Member States of the Community which must therefore, in that capacity, take all measures necessary to ensure that those resolutions are put into effect and may, and indeed must, leave unapplied any provision of Community law, whether a provision of primary law or a general principle of Community law, that raises any impediment to the proper performance of their obligations under that Charter26.However, according to the Court of First Instance, the mandatory nature of those 24

Case T-315/01, Kadi v. Council of the EU and the Commission of the EC, 2005 O.J. (C 281) paragraphs 181 to 184; and Case T-306/01, Yusuf and Al-Barakaat Int‘l Found. v. Council of the EU and Commission of the EC, 2005 E.C.R. II-3533 paragraphs 231 to 234. 25

Case T-315/01, Kadi v. Council of the EU and the Commission of the EC, 2005 O.J. (C 281) paragraphs 185 to 188; and Case T-306/01, Yusuf and Al-Barakaat Int‘l Found. v. Council of the EU and Commission of the EC, 2005 E.C.R. II-3533 paragraphs 235 to 238. 26

Case T-315/01, Kadi v. Council of the EU and the Commission of the EC, 2005 O.J. (C 281) paragraphs 189 and 190; and Case T-306/01, Yusuf and Al-Barakaat Int‘l Found. v. Council of the EU and Commission of the EC, 2005 E.C.R. II-3533 paragraphs 239 and 240.


NILS Law Review

November, 2014

Vol. 1

resolutions stemming from an obligation under international law does not bind the Community, for the latter is not, as such, directly bound by the Charter of the United Nations, not being a Member of the United Nations, or an addressee of the resolutions of the Security Council, or the successor to the rights and obligations of the Member States for the purposes of public international law.27 In terms of rank, the CFI transposes the formal hierarchy of international law norms set by Article 103 UN Charter within EU law. As a result, UN law is granted primacy over all other sources of EU law, including EU primary law. The only exception to the primacy of international law that is granted by the CFI is the case in which international law norms violate international jus cogens norms. Those norms apply to all international law subjects, including the UN, and hence take priority over the formal hierarchy of norms applying within the UN, and accordingly within EU law. If international jus cogens norms were to be violated, the CFI would have the competence to review the international legality of international law norms within the EU legal order.28 As there was no violation of jus cogens in the case at hand, the CFI rejected the action in annulment. The CFI‘s reasoning reflects a monist approach according to which valid international law is also immediately valid within EU law.29 Opinion of Attorney General Maduro On 16 January 2008, Advocate-General Maduro issued his opinion, disagreeing with the CFI both on the outcome and the reasoning. According to Maduro, the EC is not bound by the UN Charter and by UN Security Council resolutions. The CFI‘s de facto succession argument cannot be made successfully pertaining to the UN. As a matter of fact, Article 307 EC creates duties for member states to make sure they can abide by their EC obligations. Of course, the EC shares many of the UN‘s aims and ought to make sure its member states can 27

Case T-315/01, Kadi v. Council of the EU and the Commission of the EC, 2005 O.J. (C 281) paragraphs 192; and Case T-306/01, Yusuf and Al-Barakaat Int‘l Found. v. Council of the EU and Commission of the EC, 2005 E.C.R. II-3533 paragraphs 242. 28

Case T-315/01, Kadi v. Council of the EU and the Commission of the EC, 2005 O.J. (C 281) paragraphs 226; Samantha Besson (2009), European Legal Pluralist after Kadi, European Constitutional Law Review, 5, Pages 237-264, Available at http://journals.cambridge.org/abstract_S1574019609002375 (Last Accessed on August 24, 2014). 29

Case T-315/01, Kadi v. Council of the EU and the Commission of the EC, 2005 O.J. (C 281) paragraphs 224; Samantha Besson (2009), European Legal Pluralist after Kadi, European Constitutional Law Review, 5, Pages 237-264, Available at http://journals.cambridge.org/abstract_S1574019609002375 (Last Accessed on August 24, 2014).


NILS Law Review

November, 2014

Vol. 1

abide by their obligations under UN law.30 In terms of the relationship between European and international law, the opinion adopts a dualist, or, more exactly, a pluralist approach to international law given Maduro‘s other writings on the subject.31 Even in cases in which the EC is bound by international law, Maduro considers that ‗[t]he relationship between international law and the Community legal order is governed by the Community legal order itself, and international law can permeate that legal order only under the conditions set by the constitutional principles of the Community.‘32 Decision of European Court of Justice The ECJ‘s reasoning was robustly dualist, emphasizing repeatedly the separateness and autonomy of the EC from other legal systems and from the international legal order more generally, and the priority to be given to the EC‘s own fundamental rules. The judgment is striking for its treatment of the U.N. Charter, at least insofar as its relationship to EC law was concerned, as no more than any other international treaty. Furthermore, the judgment gives only perfunctory consideration to the traditional idea of the EC‘s openness to international law. The ECJ denied that its review of the EC Regulation implementing the U.N. Resolution would amount to any kind of review of the Resolution itself, or of the Charter, and suggested that its annulment of the EC instrument implementing the Resolution would not necessarily call into question the primacy of the Resolution in international law. 33 Without specifically mentioning the U.N. Charter, the ECJ declared that ―an international agreement cannot affect the allocation of powers fixed by the Treaties or . . . the autonomy of the Community legal system,‖ that ―the obligations imposed by an international agreement cannot have the effect

30

Case C-402/05 P Kadi, Opinion of AG Maduro, 16 January 2008, par. 21-4, 30.

31

M. Maduro, ‗Contrapunctual Law: Europe‘s Constitutional Pluralism in Action‘, in N. Walker (ed.), Sovereignty in Transition (Oxford, Hart Publishing 2003) p. 501; M. Maduro, ‗Interpreting European Law: Judicial Adjudication in a Context of Constitutional Pluralism‘, European Journal of Legal Studies (2007) p. 1; Samantha Besson (2009), European Legal Pluralist after Kadi, European Constitutional Law Review, 5, Pages 237-264, Available at http://journals.cambridge.org/abstract_S1574019609002375 (Last Accessed on August 24, 2014). 32

33

Case C-402/05 P Kadi, Opinion of AG Maduro, 16 January 2008, par. 24.

Grainne de Burca, The European Court of Justice and the International Legal Order After Kadi, Harvard International Law Journal, Volume 51, Number 1, Winter 2010, Available at http://www.harvardilj.org/articles/1-50.pdf (Last Accessed on August 24, 2014), Pg. 25.


NILS Law Review

November, 2014

Vol. 1

of prejudicing the constitutional principles of the EC Treaty,‖ and that the EC is an ―internal‖ and ―autonomous legal system which is not to be prejudiced by an international agreement.‖34 The ECJ turns hypothetical and envisages the case in which the EC were bound by a UN Security Council resolution. The articulation between the international and European legal orders in such a case would clearly follow a dualist model (rather than a monist one): it is up to EC law to determine the conditions under which the ‗transposition‘ of international law can take place, and hence the validity of international law as a source of EC law within the EU legal order. This follows a fortiori from the ECJ‘s considerations about the ‗internal and autonomous legal order of the Community‘ as being distinct from the international legal order and about the ECJ‘s power to review the compatibility between EC law and the constitutional guarantees of EC law, a constitutional power that is unaffected by international law. According to the ECJ, the rank of international law within the European legal order is determined by EC law and in particular by Article 300 paragraphs. 6 & 7, EC law, including EU constitutional principles and EU fundamental rights (qua general principles of EU law). It is intermediary and international law norms are subordinated to EU primary. 35 The bottom line of the judgment, however, was that the U.N. Charter and Security Council resolutions, just like any other piece of international law, exist on a separate plane and cannot call into question or affect the nature, meaning, or primacy of fundamental principles of EC law. In an interesting legal counterfactual, the ECJ asserted that even if the obligations imposed by the U.N. Charter were to be classified as part of the ―hierarchy of norms within the Community legal order,‖ they would rank higher than legislation but lower than the EC Treaties and lower than the ―general principles of EC law‖ which have been held to include ―fundamental rights.‖36 Not only did the ECJ‘s approach provide a striking example for other states and legal systems that may be inclined to assert their local constitutional norms as a barrier to the enforcement of international law, but more importantly it suggests a significant paradox at the

34

Grainne de Burca, The European Court of Justice and the International Legal Order After Kadi, Harvard International Law Journal, Volume 51, Number 1, Winter 2010, Available at http://www.harvardilj.org/articles/1-50.pdf (Last Accessed on August 24, 2014), Pg. 25-26 35

Samantha Besson (2009), European Legal Pluralist after Kadi, European Constitutional Law Review, 5, Pages 237-264, Available at http://journals.cambridge.org/abstract_S1574019609002375 (Last Accessed on August 24, 2014). 36

Grainne de Burca, The European Court of Justice and the International Legal Order After Kadi, Harvard International Law Journal, Volume 51, Number 1, Winter 2010, Available at http://www.harvardilj.org/articles/1-50.pdf (Last Accessed on August 24, 2014), Pg. 25-26


NILS Law Review

November, 2014

Vol. 1

heart of the EU‘s relationship with the international legal order, the implications of which have not begun to be addressed.37 Conclusion Without doubt, Kadi is a significant case. However, the challenge it presents to the international legal system is tactical, not strategic. D‘Aspremont and Dopagne have spoken of the ECJ‘s judgment in Kadi as a reminder of the elementary divide between legal orders.38 The ECJ‘s judgment leaves us with a number of open questions regarding its effects on the structure of the international legal order. Indeed, the question must be asked whether the primacy of UN Charter obligations is jeopardized.39 Certainly, international law entitles an autonomous legal order to dualism. In a piece published in the Wall Street Journal shortly after the ECJ rendered its decision in Kadi, Jack Goldsmith and Eric Posner referred to that judgment as evidence that ‗Europe‘s commitment to international law is largely rhetorical. Like the Bush administration, Europeans obey international law when it advances their interests and discard it when it does not.‘40 The ECJ‘s decision shows that the International Rule of Law is a myth in the light of the Dualist theory of relationship between Municipal Law and International Law.

37

Grainne de Burca, The European Court of Justice and the International Legal Order After Kadi, Harvard International Law Journal, Volume 51, Number 1, Winter 2010, Available at http://www.harvardilj.org/wpcontent/uploads/2010/09/HILJ_51-1_deBurca.pdf (Last Accessed on August 24, 2014). 38

Jean d‘Aspremont and Frédéric Dopagne, ‗Kadi: The ECJ‘s Reminder of the Elementary Divide between Legal Orders‘ (2008) 5 IOLR 371. 39

Albert Posch, The Kadi Case: Rethinking the Relationship Between EU Law And International Law?, 15 Colum. J. Eur. L. F. 1 (2009), Available at http://www.cjel.net/online/15_2-posch/ (Last Accessed on August 24, 2014). 40

Jack Goldsmith and Eric Posner, ‗Does Europe Believe in International Law?‘ WSJ (25 November 2008).


NILS Law Review

November, 2014

Vol. 1

Validity of Legislative Security Council Resolutions Arindrajit Basu1

Introduction The construct of international law has always been predicated on state consent.2 Ever since the inception of the United Nations in 1945, it has been well-recognized that "there is no machinery of international legislation"3and that there "exists no corporate organ formally empowered to enact laws directly binding on international legal subjects." 4This view has changed with the United Nations Security Council being termed 'world legislator'5 due to the recent trend of it passing resolutions which impose binding obligations of a general, abstract and continuing nature rather than the earlier specific time bound obligations it would impose in response to particular crisis in particular regions.6 Essentially, this newly developed role enables the Security Council to impose binding obligations on states akin to those emanating out of international agreements without seeking state consent and has been criticized for leading to the creation of a hegemonic world order that is dependent on the discretion of the five permanent Security Council members. This paper first seeks to answer the question of whether legislative Security Council Resolutions could actually be classified as ‗international legislation‘ in Part I. In Part II, it goes on to assess the extent of their validity with respect to both the United Nations Charter and other principles of international law, namely, 1

Student of III Year, B.A.LL.B. at West Bengal National University of Juridical Sciences, Kolkata. Author can be contacted at basu.arindrajit@gmail.com. 2

ALAN BOYLE& CHRISTINE CHINKIN, THE MAKING OF INTERNATIONAL LAW, 56 (2007)

3

OPPENHEIM'S INTERNATIONAL LAW 32 (Robert Jennings&Arthur Watts eds., 9th ed. 1992)

4

Prosecutor v. Tadic, Appeal on Jurisdiction,No.IT-94-1-AR72.para 44 (Oct.2, 1995), 35 ILM 32 (1996) [hereinafter ‗Tadic‘] 5

Jose' E. Alvarez, Hegemonic Internatioal Law Revisited, 97 AJIL 873,874 (2003);

NicoKrisch, The Rise and Fall of Collective Security, US Hegemony and Plight of the Security Council in TERRORISM AS A CHALLENGE FOR NATIONAL AND INTERNATIONAL LAW:SECURITY VERSUS LIBERTY?879,883 (Christian Walter et al eds.,2003) 6

The Commencement of the war on terror was a large factor behind this propellin g the advent of these legislative security council resolutions SeeMICHAEL. N. SHMITT, THE GEORGE C. MARSHALL EUROPEAN CENTER FOR SECURITY STUDIES, COUNTER-TERRORISM AND THE USE OF FORCE IN INTERNATIONAL LAW 1-4 (2002


NILS Law Review

November, 2014

Vol. 1

proportionality and subsidiarity. It then analyzes mechanisms for review of such Security Council resolutions in Part III and finally suggests some tools of interpretation, which may be used to facilitate the review. This paper does not deal with ‗traditional‘ Security Council Resolutions, which impose obligations of a specific character and are limited in time but only with the two ‗legislative‘ resolutions that have been passed by the Council so far, namely Resolution 13737 and Resolution 1540.8 The Role of the Security Council and Its Resolutions under the United Nations Charter The Security Council was first conceived as a political organ with the objective of maintaining international peace and security9 and was empowered by Article 39 of the United Nations Charter to ‗determine the existence of any threat to the peace, breach of the peace or act of aggression and to „make recommendations or decide what measures shall be taken.”10 Due to the crucial role the Council serves, the Charter of the United Nations has conferred broad powers on the Council. A Security Council Resolution [hereinafter ‗SCR‘] is the formal medium of the expression of the collective will of the Security Council.11Before, we go on to analyzing the legality and modes of interpretation of these resolutions we need to keep a few critical elements in mind. First, resolutions, unlike all other international conventions are unilateral acts.12 The resolution is binding on all members of the United Nations regardless of whether they consented to being bound by the resolution.13. Second, the power of the Security Council to alter the rights and obligations of states arises from Chapter VII of the United Nations

7

SC Res. 1373 (Sept 28,2001), 40 ILM 1278 (2001) ( "deciding that all states should take wide-ranging measures to combat international terrorism and to prevent and suppress the financing of terrorism") [hereinafter ‗Resolution 1373‘] 8

SC Res. 1540 (Apr.28,2004) 43 ILM 1237 (2004) " Deciding that all states sould act to prevent proliferation of weapons of mass destruction and their delivery systems, in particular for terrorist purposes") 9

The most prominent work on the history of the counciL is SIDNEY BAILEY AND SAM DAWS,THE PROCEDURE OF THE UN SECURITY COUNCIL, ( 3rded, 1998) 10

Charter of the United Nations, Art. 39, 24.Oct.1945 [hereinafter ―U.N. Charter‖]

11

Michael Wood, The interpretation of Security Council Resolutions, , 1998 MAX PLANCK Y.B. UN L. 73,74-75 (1998) [hereinafter ‗Wood‘] 12

Id., at 10

13

See Maarten Bos, The interpretation of decisions of international Organizations, ‗ 28 NLIR6 (1981)


NILS Law Review

November, 2014

Vol. 1

Charter. Article 103 contained in this chapter states that obligations accruing from Security Council Resolutions prevail over all existing treaty agreements.14 Finally, we need to consider that Security Council Resolutions are results of essentially political negotiations, not functions of legal analysis.

15

This notion is reflected in the

procedure which results in the SCRs being drafted. These documents are generally proposed, amended after informal caucus, typically involving only the fifteen members of the Security Council. Usually, one country prepares a draft that is edited and revised by the other delegations. The conclusions are then discussed through informal consultations through which the delegations arrive at consensus on the provisions to be contained in the final document. There is little or no legal consultation, even though the resolution framers are aware that this will result in binding obligations on the members of the United Nations. Do Security Council Resolutions Form A Legitimate Source of International Law? The term 'international legislation' has been used in many ways by scholars. The term has generally been used in a broad manner to encompass "both the process and the product of the conscious effort to make additions to, or changes in, the law of nations."16 It has also been used to describe the conclusion of law making treaties, the codification of customary international law or concluding statements released by international organizations.17 The two ‗legislative‘ resolutions being considered in this paper, 1373 and 1540, were passed with similar objectives and have a very similar structure. First, they both create binding obligations on states to do or refrain from doing certain acts. For instance, Resolution 1373 " decides that all states shall prevent and suppress the financing of terrorist acts." The adoption 14

U.N. Charter supra note , Art.103 (― In the event of a conflict between the obligations of members of the United Nations under the present Charter and their obligations under any other international agreement their obligations under the present Charter shall prevail).‖; Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v.UK; Libya v. US,), 1992 ICJ REP> 3& ``4 (Apr.14) [hereinafter ‗Lockerbie‘] ( Here it was held that the U.N. Charter overwrote obligations under the 1971 Monreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation); Jochen Abr. Frowein&NicoKrisch, Introduction to Chapter VII in 1 THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 701,703-705 (Bruno Simma ed., 2nd ed.2002) [hereinafter ―Frowein&Krisch‖] 15

Wood supra note 10, 80-81

16

INTERNATIONAL LEGISLATION: A COLLECTION OF TEXTS OF MULTIPARTITE INTERNATIONAL INSTRUMENTS OF GENERAL INSTRUMENTS, at Xiii ( Manley.O. Hudson,1931) 17

KrzystysztofSkubiszewski, International Legislation in 2 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 1255 (Rudolf Benrhardt ed.,1995);OPPENHEIM'S INTERNATIONAL LAW 32 (Robert Jennings&Arthur Watts eds., 9th ed. 1992)


NILS Law Review

November, 2014

Vol. 1

of resolution 1373 was hailed by UN member states18 as a "ground breaking resolution"19 and a "landmark decision."20Resolution 1540 directs states to "refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery." Second both resolutions urges states to foster respect for international treaties.

21

Third, both

resolutions set up sub-committees to monitor the implementation of its provisions by statesnamely the Counter Terrorism Committee and the 1540 Committee respectively. 22 Yemin states that all legislative acts, including those passed by international organs have three essential characteristics.23 First, their form must be unilateral. Second, they must alter an existing legal norm and third, they must be general and abstract in nature, that is their application must extend to indeterminate individuals and must not be bound by time. In light of the above characteristic of a legislative act, let us examine whether the two resolutions in question qualify as legislative resolutions. All Security Resolutions are unilateral in form by virtue of being passed by the Security Council through powers vested in it through Chapter VII of the United Nations.24 Charter. Second, all Security Council resolutions result in the modification of old norms or the creation of new norms through the powers enmeshed in Article 103 of the United Nations Charter. Resolution 1373, for instance converted the previous non-binding rules of the International Conventions on the Financing of Terrorism into rules of global application. The first two prongs of Yemin‘s test apply to both the traditional Security Council resolutions and the new trend of legislative resolutions. The factor that sets the two kinds of resolutions apart is the ‗general and abstract‘ nature of 18

See e.g. UN Doc.A/56/757, at 4 (2001) ( India and the fifteen members of the European Union); UN Doc. A/56/PV.59, at 34 (2001) (Kazakhstan) 19

UN Doc. A/56/PV.48, at 9 (2001) (Turkey) see also UN Doc. A/56/PV.34, at 13 (2001) (Guatemala)

20

UN Doc.A/56/PV.25 (Singapore)

21

The International Convention for the suppression of the Financing of Terrorism was expressly mentioned in resolution 1373. See International Convention for the Financing of Terrorism, GA Resolution 54/109, UN Doc. A/RES/54/109 (1999) entered into force on 10 April 2002 22

Eric Rosand, The Security Council as global legislator : Ultra vires or ultra innovative, 28 FORDHAM INT‘L LAW JOURNAL3, 542,547 (2003) 23

EDWARD YEMIN,LEGISLATIVE POWERS IN THE UNITED NATIONS AND ITS SPECIALIZED AGENCIES 6 (1969)

24

Frowein and Krischsupra note13 ,at 706.


NILS Law Review

November, 2014

Vol. 1

the legislative resolutions. The obligations espoused by Resolutions 1373 and 1540 are phrased in neutral language, could apply to an indefinite number of cases and are not bound by limits of territory or time. For instance, Resolution 1390 states that „all states shall ...[f]reeze without delay the funds and other financial assets or economic resources"25 of members of the Al-Qaeda and the Taliban, Resolution 1373 uses the same terms but instead of limiting it to a particular terrorist organisation or entity extends it to "persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts."26 ‗Terrorist acts‘ are not defined in Resolution 1373. Neither is there a globally accepted definition of terrorism.27. Hence, unlike in the case of Resolution 1390, the threat is general and not specific. While they may have been framed with specific target states in mind, the obligations are binding on all United Nations member states and have no direct addressees. As the members of the United Nations are left with wide discretionary powers as to the implementation of the treaties, it can be said that these resolutions are of a 'general and abstract character.' Hence, both resolutions meet the requirements of a legislative act and can be classified as legislative resolutions which impose binding obligations on members of the United Nations, obligations that are not limited in time or space. This analysis brings us to the second question of whether the Security Council should be passing such resolutions with respect to the legal framework of the United Nations. Are Security Council Resolutions Valid? PROVISIONS OF THE UNITED NATIONS CHARTER To determine the validity of legislative Security Council Resolutions in international law, two questions need to be considered. First, should general phenomena such as terrorism or the proliferation of weapons of mass destruction be included within the ambit of 'threats to the peace' under Article 39 of the United Nations Charter? Second, can the general and abstract nature of obligations created by these legislations qualify as a 'measure' under Article 41 of the United Nations Charter? Through the determination of these two issues, I do not seek to establish that all Security Council resolutions are valid or that the Security Council has 25

SC Res.1390, para 2(a) (Jan 16,2002), 41 ILM 511 (2002).

26

SC Res. 1373 (Sept 28,2001) 40 ILM 1278 (2001)

27

The General Assembly devised a very broad definition of terrorism but has yet failed to define or even come up with parameters for the concept of international terrorism See UN Doc.A/RES/49/60 (1994); SeeKIMBERLEY TRAPP, STATE RESPONSIBILITY FOR INTERNATIONAL TERRORISM 67 (2011)


NILS Law Review

November, 2014

Vol. 1

unfettered discretion to impose obligations on states. Rather, this section seeks to answer the question of whether legislative Security Council resolutions, which impose obligations of a ‗general and abstract‘ character are valid per se. Scholars remain divided about the first issue. Some scholars have argued that the Security Council was created to arrive at expedient political solutions to threats that are of an immediate nature and arise from a specific situation or crisis. 28 Other scholars advocate extending the concept of threat to a particular kind of conduct or a continuing situation.29Talmond30 argues that as the Charter of the United Nations is a treaty, it must be interpreted with ordinary meaning given to its terms in the light of object and purpose. Along with context, subsequent practice regarding the interpretation of the treaty must also be taken into account.31 The ICTY appeals chamber used the subsequent practice of United Nations members and stated that "the threat to peace is more of a political concept"32 and hence, a determination of this threat requires an analysis of political realities apart from mere normative considerations. A consideration of Council practice since its inception reveals that the "threat to the peace" is an evolving concept.33 The evolution has taken place with regard to evolving technological and political realities.34Particularly, since the beginning of the 1990s, with the rise of nonstate actors and terrorist groups35, the threat to peace began to be interpreted as more than a mere absence of situations that may result in the use of armed force. An expansive reading of 28

Matthew Happold, Security Council Resolution 1373 and the Constitution of the United Nations 16 LEIDEN J.INT'L. 593,596 (2003) 29

Christian Tomuschat, Obligations Arising for States Without or Against Their Will, 241 RECUIL DES COURS 195,344-46 (1993 IV) 30

Stephen Talmond, The Security Council as world legislature 99 AJIL 175, 177-178 (2005) [hereinafter ‗Talmond‘] 31

Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S. 331.[hereinafter Vienna Convention] 32

Tadicsupra note 2, at 30.

33

See Talmondsupra note 29, at 180.

34

Nico.J.Shcriver, The Future of the Charter of the United Nations 10 MPYB 2,10 (2006)

35

Thomas. G. Weiss, D. ConorSeyle Kelsey Coolidge ,The Rise of Non-state Actors in global governance: Opportunities and Limitations, ONE EARTH FUTURE FOUNDATION DISCUSSION PAPER SERIES, 2013, at 4-10; ROBERT FAULKNER, GLOBAL GOVERNANCE: THE RISE OF NON-STATE ACTORS: A BACKGROUND REPORT FOR THE SOER 2010 ASSESSMENT OF GLOBAL MEGATRENDS 7-9 (2011).


NILS Law Review

November, 2014

Vol. 1

a ‗threat‘ under Article 39 view is further underpinned by Article 1(1) of the U.N. Charter which states that the maintenance of international peace and security includes both the prevention and removal of threats to peace. This implies a positive obligation on the United Nations to act positively, even pre-emptively rather than retroactively to prevent the germination of any situation that could disturb international peace. As early as 1992, speaking on behalf of the Council, the President declared that " [t]he absence of war and military conflicts among states does not in itself ensure international peace and security. The non-military sources in the economic, social, humanitarian and ecological fields have become threats to peace and security."36 Since 1992, a wide variety of constructs have been included within the ambit of 'threats to peace‘ by both the Security Council and the General Assembly. Examples include the proliferation and development of weapons of mass destruction37, international terrorism38, using mercenaries, violent internal armed conflict39 and so on. It could be argued that such a broad reading of the term 'threat' would open the floodgates for phenomenon such as trade sanctions, economic meltdowns or environmentally unsuitable practices to be classified as threats to peace. However, there needs to be a reasonable nexus between the situation being considered and the potential for the use of force 40

and the requirement of this nexus would prevent the undue use of the Council‘s powers.

With regard to whether measures envisaged by Article 41 extends to creating obligations of a general and abstract character depends on the type of threat in question. If there is an imminent threat to peace, then the measure needs to be targeted and specific. If the threat is

36

UN Doc.S/23500,at 3 (1992), at <http://projects.sipri.se/cbw/docs/cbw-unsc23500.html>.

37

UN Doc. S/PRST/1996/17.para.4; UN Doc. S/PRST/1998/12,para; SC Res.1172, pmbl.(June 6,1998); GA Res. 57/63.pmbl.(Nov 22,2002); GA Res.58/4,pmbl.( Dec 8,2003) 38

GA Res.48/92.pmbl.( Dec 20.1993)

39

GA Res. 53/71, pmbl. ( Dec 4,1998); Proscutor v Morris Kallen and BrimmaBazzy Kamara, Cases No SCSL2004-15-AR72 € and SCSL-2004-16-AR 72 (E), Decision on Challenge to Jurisdiction; Lome Accord Amnesty, 13 March 2—4, 43 (― …The continued violence and loss of life in Sierra Leonne following the military coup of 25 May,1997, the deteriorating humanitarian conditions in that country, and the consequences for neighbouring countries constitutes a threat to international peace and security in the region‖); Prosecutor v. TihomirBlaskic‘, Judgment on the Request on the Republic of Croatia for Review of the Decision of the Trial Chamber 11 on 18 July 1997, Judgment of 29 October 1997, sup poena Appeal 36, ( “ A breach of the terms of such a peace agreement [Lome Agreement] resulting in resumption of internal armed conflict or creating a threat to peace in the determination of the Security Council may indicate a reversal of the factual situation of peace to be visited with possible legal consequences from the new situation of conflict created‖) 40

See Talmondsupra note 29 at 181


NILS Law Review

November, 2014

Vol. 1

more general in nature, the corresponding measure may be more abstract.41 For instance, if there is a threat of an imminent terrorist act, then the Security Council must freeze the assets of those suspected of being involved in the specific terrorist act. In cases where the threat is a general phenomenon such as international terrorism, then the Council should order the freezing of funds of all people who may potentially be involved in any terrorist act. Hence, a broader reading of the term measures would only imply a fortiori, a generalization of individual obligations. Many scholars have argued that the 'measures' in terms Article 41 do not cover obligations such as those stated in Resolution 1373 or 1540 because such general obligations can only be entered into when states consent to be bound by them through international agreements.42 However, this view does not hold if we consider the wording of Article 41 itself. The list of measures detailed in the Article is an inclusive rather than an exhaustive list. Further, as held in the Tadic case, "all the Article requires is that they do not involve the 'use of force.' It is a negative definition.... Article 39 leaves the choice of means and their evaluation to the Security Council, which enjoys wide discretionary powers in this regard; and it could not have been otherwise, as such choice involves political evaluation of the highly complex and dynamic situations."43 Hence, as long as measures proposed by legislative Security Council resolutions do not intervene unnecessarily or excessively in the domestic affairs of states, they are vires with respect to the powers and functions of the Security Council. PRINCIPLES OF PROPORTIONALITY AND SUBSIDARITY Two further tools for the determination of whether legislative Security Council resolutions are ultra vires are the principles of proportionality and subsidiarity.44 An application of the principle of subsidiarity aids in the determination of which level of authority will be able to

41

Bart SmitDuijzentkunst, Interpretation of legislative Security Council resolutions, 4 UTRECHT LAW REVIEW 3,188, 191 (2008) 42

Jochen Abr. Frowein&NicoKrisch, Introduction to Chapter VII in 1 THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 701, 708-09 (Bruno Simma ed., 2nd ed.2002) [hereinafter â&#x20AC;&#x2022;Frowein&Krisch] 43

44

Tadic, supra note 2, paras 35-39

ALEXANDER ORAKHELASHVILI,COLLECTIVE SECURITY, 164-170 (2010)[hereinafter Orakhelashvili]; HANS KELSEN, THE LAW OF THE UNITED NATIONS 294-95 (1950).


NILS Law Review

November, 2014

Vol. 1

achieve a proposed goal in a more expedient manner. 45This doctrine only justifies action by a higher authority if the said goals cannot be achieved equally well by lower levels of authority and there is no unnecessary interference with the authority these lower levels possess. The Maastricht Treaty, which established the European Union contains the best-known example of a codification of the principle of subsidiarity.46 Though there is no explicitly mention in the United Nations Charter, the doctrine accounts for the relationship between the United Nations and its member states as elucidated in Article 2(7) of the Charter, which states that the United Nations must not intervene in matters falling within a state's domestic jurisdiction unless the Security Council is taking measures under Chapter VII. This essentially implies that even though states have the right to take decisions with respect to their territories, in cases of a threat to international peace and security as envisaged in Chapter VII, the Security Council may be a more competent authority to deal with such a threat. A lacuna in the legal framework in terms of the existence or enforceability of a norm that "urgently" needs to become a part of the international law framework could indicate a need for the Security Council to intervene in the matter. This is due to it being a higher and more competent authority. The reasoning was affirmed by several delegations at the Council's open debate on April 22,2004 and by the President who stated with reference to Resolution 1540 that: "There was a gap in international law pertaining to non-state actors. So, either new international law should be created, either waiting for customary international law to develop, or by negotiating a treaty or convention. Both took a long time, and everyone felt

45

The principle of subsidiarity was first conceived by German theologian and aristocrat Oswald von NellBreuning, whose work went on to influence Pope Pius XI, which laid the foundations of Catholic social doctrine see Patrick Mckinley Brennan, Subsidiarity in the Tradition of Catholic Social Doctrine, SUBSIDARITY IN COMPARATIVE PERSPECTIVE (Michelle Evans and Augusto Zimmerman,eds,2008) 46

The principle is laid down in the Maastricht Treaty:" In areas which do not fall within its exclusive competence, the Community shall take action in accordance with the principle of subsidiarity, only if and in so far as the objective of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community." See Treaty Establishing the European Community Feb 7, 1992,art 3b (1992) C.M.L.R.573,590; Paul.D.Marquardt, Subsidarity and Soverignty in the European Union, 18 FORDHAM INTL'LLJ 2, 616 (1994)


NILS Law Review

November, 2014

Vol. 1

that there was an "imminent threat" which had to be addressed and which could not wait for the usual way."47 Similarly, in the case of Resolution 1373, while the Convention for the Suppression of the Financing of Terrorism was in existence, there were only four state parties to the Convention at the time the resolution was passed. Given the grave threat that international terrorism posed to the global order, it was appropriate for the Security Council to intervene in the matter. An extension of the principle of subsidiarity is the principle of proportionality which essentially advocates that the extent of intervention must be necessary and proportional to the urgency of the situation in question.48Both resolutions 1373 and 1540 also satisfy the criteria of proportionality because while creating their respective obligations, the text of the resolutions did not specify measures which the states need to take to prevent the financing of terrorists or proliferation of WMDs. Thus states retain a fair amount of jurisdictional discretion in the matter and enabling them to work with the United Nations for the furtherance of universal goals.49 OBJECTIONS TO SECURITY COUNCIL LEGISLATIONS Several objections have been raised to Security Council legislation. First, an inherently undemocratic and unrepresentative body may be unsuitable for creating international law as it could lead to the promulgation of global hegemony.50 However, this concern, while valid, also applies to any other Council Resolution. If the use of force could be mandated through such an inherently undemocratic process in response to particular crisis situations, then an obligation to fund the assets of terrorists or work towards the non-proliferation of WMDs can also certainly be created through the same mechanism. Further, Security Council Resolutions are not passed in a legal vacuum. As the Security Council is an organisation whose powers emanate from the Charter, the drafters, are aware that the Security Council is bound by its 47

Press Conference by the Security Council President (Apr.2,2004), at <http://www.un.org/News/briefings/docs/2004/pleugerpc.DOC.HTM> 48

Orakhelashvili supra note, at 164; John Quigley, Security Council Fact-finding: A prerequisite to Effective Prevention of War, 7 FLORIDA JOURNAL OF INTERNATIONAL LAW 191,242 (1992) 49

Nicholas Tsagourias, Security Council Legislation,Article 2(7) of the UN Charter and the Principle of Subsidiarity ADAM SMITH RESEARCH FOUNDATION WORKING PAPER SERIES,7-10 (2011) 50

See UN Doc. A/56/PV.36, at (2001)( The representative of Paraguay to the Council claimed that " The effective implementation of resolution 1373 requires the will and co-operation of all Member States. For this we need a representative,equitable and transparent Council.")


NILS Law Review

November, 2014

Vol. 1

provisions and ultra vires matters will be dealt with, if not judicially, then at least indirectly or incidentally.51 Thus, the excuse that the procedure behind the drafting of a Security Council Resolution is merely a political endeavour falls once we bear in mind that the Security Council does not operate legibus solutus.52 A second objection is that Article 38 of the Statute of the International Court of Justice does not recognize Security Council Resolutions as a source of law.53 However, all Security Council resolutions find their validity in the United Nations Charter and not in the ICJ statute. As the Charter qualifies as a source of law under Article 38 (1) (a), the obligations stemming from the resolutions could bring them within the ambit of 'secondary treaty or Charter law.' 54

Even so, the vacuum with respect to Article 38 has not deterred the ICJ from applying

resolutions to solve disputes without referring to Article 38 shows that Security Council resolutions could form a source of international law.55 Third, it could be argued that legislative Security Council resolutions defy the basic formulation of international law, which is essentially a system based on consent. This argument firstly overlooks the fact that the binding nature of Security Council Resolutions stem from Articles 25 and 103 of the United Nations Charter, which member states have, in fact, consented to. Now, the ICJ in the Lockerbie case held that obligations stemming from Security Council Resolutions over-ride obligations under international treaties.56 Hence, owing to the continuing nature of obligations imposed by legislative Security Council Resolutions, existing treaties are de facto amended without any changes to their texts. Now, in status quo the Council may not compel member states to ratify existing treaties. Even so, provisions of legislative Security Council Resolutions should only create binding obligations on states when compliance with such an obligation is necessary to counter a threat to 51

Susan Lamb, Legal Limits to United Nations Security Council Powers IN THE REALITY OF INTERNATIONAL LAW:ESSAYS IN HONOUR OF IAN BROWNLIE 361,365 (Guy.S. Goodwin-Gill&StefanTalmon eds., 1999) 52

Tadicsupra note 2, 29-30

53

See Talmondsupra note 29, at 180.

54

See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW,4-10 ( 7th ed,2008)

55

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Resolution 276 (1970), Advisory Opinion, 1971 ICJ REP. 16, 53,para.118 (June 21) ( referring to a "situation which was validly declared illegal by the Security Council") [hereinafter ‗Namibia AO‘] 56

Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v.UK; Libya v. US,), 1992 ICJ REP> 3& ``4 (Apr.14) [hereinafter ‗Lockerbie‘]


NILS Law Review

November, 2014

Vol. 1

international peace and security. For instance, Resolution 1373 calls for states in a nonbinding provision to "become parties as soon as possible to the relevant international conventions and protocols regarding terrorism." As there is a reasonable nexus between international terrorism and a threat to international peace and security, the imposition of such an obligation on states is valid. A fourth concern is that the Security Council was envisaged as a global policeman akin to the Executive organ in a municipal system and not as a legislator.57 However, this analogy would be a far too simplistic one. The role of the Security Council should not be assessed with respect to its general role but instead with its overarching purpose of maintaining international peace and security, as has been set out in the United Nations Charter. Who Can Review And Interprets SCRs? Now that we have determined that there is the possibility of some SCRs being ultra vires, we are faced with the question of who has the power to interpret and review them. The obvious body that comes to mind is the International Court of Justice. However, there are some clear issues that would emerge with such a review. As the ICJ would rule only on Security Council resolutions, the powers of review would be confined to and binding on parties to the dispute. The problem that arises here is that the Security Council, being a separate organ of the United Nations cannot be made a party to the dispute.58 Hence, it cannot be given a platform to defend the validity of the resolution. Further, if the Council cannot be made a respondent, it precludes states from filing plaints directly against the Council. The ICJ statute at present also contains no provisions that may allow the Court to review a Security Council Resolution, thereby leading to problems of jurisdiction and precluding the ICJ from acting in the matter.59 The alternative this paper offers is to enable state parties to interpret and check the validity of Security Council Resolutions. Since there are no formal mechanisms for states doing so, this can only be done through state practice. For instance, states widely accepted the provisions of Resolutions 1373 and Resolutions 1540 as these resolutions were in line with principles of international law and it was expedient in the context for states to do so. State practice is not 57

Frowein and Krischsupra note 13, at 707

58

Statute of the International Court of Justice art.34, June 26, 1945,59.Stat.1055 ( "Only states may be parties in cases before the Court") 59

See K.R. Cronin-Furman, The International Court of Justice and the United Nations Security Council: Rethinking a complicated relationship, 106 COLUMBIA LAW REVIEW,435, 454 (2006).


NILS Law Review

November, 2014

Vol. 1

merely an aid to the interpretation of the Charter but an independent source of law, known as customary international law. State practice has been converted into a component of international law through Article 38 (1) (b) of the ICJ statute. For this conversion to happen, the practice needs to be "both extensive and virtually uniform."60 It does not mean that this has to be absolute as long as a majority of states are engaging in it. The second requirement is that the practice should be engaged in it with the recognition that a legal obligation is involved in the act. So, while most states used Resolutions 1373 and 1540 to reform their domestic legislation and justify their acts through the umbrella of these resolutions, if a majority of states chose to ignore the recommendations made in the resolutions, then by default, they would have become obsolete. A wide range of states have acted on the basis of measures mentioned in Resolutions 1373 and 1540.61In India, for instance in People‟s Union for Civil Liberties, the apex Court referred to security resolutions 1373 and 1368 to underpin provisions of the Prevention of Terrorism Act by claiming that the combating of terrorism had become a multilateral task in the 21st century and India needed to live up to its international obligations. Hence, implicitly, the Supreme Court used the legislative nature of Resolution 1373 to create obligations on India.62 Some General Principles of Interpretation The most expedient and equitable way to determine Security Resolutions is to enable state practice to determine their legitimacy. This mode of dealing with ultra vires resolutions, however, leads to an entirely new challenge. Given the absence of interpretative guidelines in the Vienna Convention on Law of Treaties, what parameters can States use to interpret the validity of Security Council Resolutions? 60

U.S. National in Morocco, ICJ Reports (1952),,200.

61

Duijzetkunst,supra note 40,at 200.

62

People‘s Union for Civil Liberties v Union of India and another 2003 SC 2363

(―The terrorist threat that we are facing is now on an unprecedented global scale. Terrorism has become a global threat with global effects. It has become a challenge to the whole community of civilized nations. Terrorist activities in one country may take on a transnational character, carrying out attacks across one border, receiving funding from private parties or a government across another, and procuring arms from multiple sources. Terrorism in a single country can readily become a threat to regional peace and security owing to its spillover effects. It is therefore difficult in the present context to draw sharp distinctions between domestic and international terrorism. 'India is a party to all these resolves. Anti-terrorism activities in the global level are mainly carried out through bilateral and multilateral cooperation among nations. It has thus become our international obligation also to pass necessary laws to fight terrorism‖)


NILS Law Review

November, 2014

Vol. 1

There is a lacunae of judicial decisions in the matter of the interpretation of Security Council resolutions. However, for the purposes for formulating our principles of interpretation, we will be referring to three guiding sources-the Namibia Advisory Opinion, the Guiding Principles formulated by the International Law Commission63 and the Vienna Convention on Law of Treaties [hereinafter ‗VCLT‘].64The most explicit guide can be found in the Namibia Advisory Opinion where the International Court of Justice opined that "the language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council."65 It is interesting to note that the ICJ in its Namibia formulation did not use the Vienna Convention on Law of Treaties in its formulation because the Vienna Convention on the Law of Treaties applies to treaties signed and ratified by parties to it, not to unilateral acts. Even though Security Council Resolutions fall outside the scope of Articles 31 to 33 of the VCLT could be used as a source of guidance66 while devising the principles of interpretation. This can be read along with the 'Guiding Principles applicable to unilateral declarations of States capable of creating obligations'67 which have been drafted by the International Law Commission. These endorse that unilateral treaties should ideally be subjected to a restrictive interpretation after due weightage is given to the context in which the agreement was drafted. Even though this guide refers to acts of states and not that of international organisations, like

63

International Law Commission, Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations, UN Doc.A/61/10 (2006) [hereinafter ‗Guiding Principles‘] 64

Vienna Convention on the Law of Treaties art. 31 and 32, May 23, 1969, 1155 U.N.T.S. 331

65

Namibia AO supra note 54, at 53.

66

Kosovo Opinion: Accordance with international law of the unilateral declaration of independence in respect of Kosovo, general List No 141, Advisory Opinion of July 22 2010,46,85 (― While the rules of treaty interpretation embodied in Articles 31 and 32 of the Vienna Convention on Law of Treaties may provide guidance, differences between Security Council Resolutions and treaties mean that the interpretation of Security Council Resolutions also requires that other factors be taken into account. Security Council resolutions are issued by a single collective body and are drafted through a very different purpose than that used for the conclusion of a treaty‖) 67

International Law Commission, Guiding Principles applicable to unilateral declaratins of States capable of creating legal obligations, UN Doc.A/61/10 (2006)


NILS Law Review

November, 2014

Vol. 1

the VCLT this can be the third source which we have used to formulate our principles of interpretation. After a reading of the guiding sources of interpretation,68a few principles to interpret and determine the validity of Security Council resolutions emerge. First, great credence must be accorded to ' the terms of the resolution', ' the ordinary meaning' and the 'text of the resolution,' thereby indicating that, just like in the cases of domestic statutes and other international conventions, in cases where there is no ambiguity in the provisions of the resolution, the most direct interpretation should be opted for. There are two components which make up all Security Council resolutions. The first is the preamble, which like in the case of any other legislation, provide us an indication of the object and purpose of the resolutions. Further, they provide some background facts and fundamental conclusions on which the operative clauses are built. As an example, in both resolutions 1373 and 1540, the recognition that international terrorism and nuclear proliferation cause a threat to international peace and security is done in the preambular paragraphs. The obligations on the State arise from the operative clauses of the resolution and in most cases, a reading of these paragraphs will provide an indication of whether the resolution is an ordinary one or one where the Security Council is essentially trying to legislate. For instance terms like 'decides' constitutes a binding obligations but can perhaps be distinguished from non-binding operative clauses such as 'recognizes', 'urges', calls upon' or 'declares.' The context and circumstances under which the resolution has been passed is an important factor recognised by all three sources considered. This can be determined through press releases, Presidential statements and the travoux preparatoires69 are all useful tools to determine the intention of the Security Council in drafting the resolution. These give the interpreter an idea of the object and purpose of the resolution, which is an indicator of whether the Security Council intended it to be limited or be infinite in time and space.

68

See Bart SmitDuijzentkunst, Interpretation of legislative Security Council resolutions,4 UTRECHT LAW REVIEW 3,188 ( 2011) 69

The significance of the negotiations leading up to a convention has been captured in Article 32 of the Vienna Convention see Vienna Convention supra note 30,art.32;THE VIENNA CONVENTION ON THE LAW OF TREATIES (Vol.1.) ( Oliver Corten&Pierre Klein eds.,2011)


NILS Law Review

November, 2014

Vol. 1 Conclusion

The primal role of the Security Council, at the time of its creation was the maintaining of international peace and security. Any analysis with respect to the validity of action taken by the body needs to be undertaken bearing this primary goal in mind. Legislative Security Council resolutions do qualify as ‗international legislation‘ by virtue of the fact that they impose general and abstract obligations on all states concerned. Their validity lies in the fact that the ‗threat to peace‘ in Article 39 of the Charter also amounts to continuing threats and a ‗measure‘ as per Article 41 need not be bound in time or space. After considering the rapidly evolving geo-political dynamics shaped by the unprecedented rise and influence of non-state actors and technological warfare capable of wreaking unprecedented havoc, global security is at a critical juncture, which needs the Security Council to take a more pro-active role. Still, the world order cannot possibly be sustained through means which concentrate power unduly in the hands of the Security Council members and legislative SCRs which have no rational nexus with the maintaining of international peace and security or unduly intervene arenas which can be effectively dealt with by States must be deemed ultra vires and lose their binding status through state practice that condemns it. It is self-evident that any form of legislation will only be effective if it is enforced with complete support and co-operation from the member states and hence, the Security Council needs to bear general state will in mind when passing any such resolution.


NILS Law Review

November, 2014

Vol. 1

Trade Secret Law: Intellectual Legal Right Protection and Issues in India -

Dr. Monika Jain1

Introduction In today‘s remarkably competitive markets, the protection of proprietary information often foretells the difference between a business‘ success and failure. How to conduct business effectively companies often must share their competitive and proprietary information be kept confidential. Intellectual property rights such as copyright, trademark and patent are ineffective where the information is required to be reserved secret scope of protection available from statutory systems in India trade secret protection provides an effective and economically viable remedy to businesses of all sizes.Trade secrets consist of almost any information developed by the company through the expenditure of time and effort, unknown to others in competing businesses, and which gives an advantage to the company over such competition formula for Coca-Cola. In the present scenario trade secrets protection is fundamental to encourage innovative steps, foreign investment and to promote healthy competition. Trade secrets give the commerce a spirited edge over the competitors and therefore one must ensure that he adequately protects his business related confidential information from his competitor. Trade secret as a new form of intellectual property is very significant and it is garnering wide importance because in the era of globalization, failure or success of any company depends on its secrets let them be policies related secrets or Information of their clients. A trade secret simply refers to any data or information relating to the business which is not generally known to the public and reasonable attempts has been made to keep the information as secret and confidential. North American Free Trade Agreement (NAFTA) defines a trade secret as ―information having commercial value, which is not in the public domain, and for which reasonable steps have been taken to maintain its secrecy.‖ 1

Dr. Monika Jain, Assistant Professor, Amity Law School, Delhi (Affiliated to Guru Gobind Singh Indraprastha University)


NILS Law Review

November, 2014

Vol. 1

Article 1711 of NAFTA secret‖ means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i)

derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

(ii)

is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The law of trade secrets is derived from the basic principles of the law of torts, restitution, agency, quasi-contract, property and contracts. There are sound economic reasons for trade secret protection of confidentiality could slow down both the quantity of information exchanged and its quality. The ―owner‖ of the secret will in most cases have expended substantial resources to discover the secret and hence has a clear economic interest in its remaining secret2. In addition, the economic rationale behind such protection is to offer an incentive to invest in the creation of information3. In today‘s globalised economy, the organization are protecting its intellectual property by adopting the available measures in form of patents, copyright, trademark etc. but besides these popular IP rights there are other IP rights not so popular but which are recently drawing attentions all over the world- Confidential Information and Trade Secret. Confidential information and trade secrets are protected under the common law and there are no statutes that specifically govern the protection of the same. In order to protect trade secrets and confidential information, watertight agreements should be agreed upon, and they should be supported by sound policies and procedures. Protection of Confidential Information in the Hands of Employees In this information age, it‘s imperative that a business protects its new formula, product, technology, customer lists, or future business plans. In the global marketplace, Indian corporations are often required to comply with foreign laws and are likely to be exposed to liabilities for violation of confidential information or trade secrets of their business partners or third parties. For example, the U.S. Economic Espionage Act, 1996 imposes criminal liability 2 3

Pace, C.R.J.: ―The Case for a Federal Trade Secrets Act‖ 8 Harv. J. Law and Technology, 427, 438 (1995). Posner, R.A.: Economic Analysis of Law (3rd Edn., 1986), p. 200.


NILS Law Review

November, 2014

Vol. 1

(including fines and prison sentences) on any person who intentionally or knowingly steals a trade secret, knowingly receives, or purchases a wrongfully obtained trade secret. The standards for protection have to be tailored to address the risks associated with rapid advancement in technology and communications. The standards accepted today may become inadequate tomorrow. However, one constant factor is the presence of a corporate culture imbued with information protection values. The employees of an organization are privy to confidential information and trade secrets on a daily basis. In the absence of any specific Indian statute conferring protection on such information in the hands of employees, recourse has to be taken to common law rights and contractual obligations. However, there are also some economic disadvantages in the protection of secret information. The producer will keep secret about the research until it can be protected by patent laws, thereby leading to a great deal of duplicated research which is not efficient 4. These considerations have to be kept in mind while deciding what information should be protected. In certain circumstances, it has been decided that the misuse of secrets should be actionable. If the disadvantages outweighed the advantages, the civil law should not intervene. Defining Trade Secrets Trade secret law is directed towards promoting inventions and discoveries. Hence, it is vital that only such information be protected that helps achieve this end. The common law has adopted a functional approach to the definition of trade secrets. Courts have preferred to demarcate between information that is in the public domain and that which is not5.The Law Commission of

4

Legislating the Criminal Code: Misuse of Trade Secrets, Law Commission of England and Wales, Consultation

Paper No. 150 (Her Majestyâ&#x20AC;&#x2DC;s Stationary Office, 1997). 5

The most concise definition is that by Megarry, V.C. in Thomas Marshall Ltd. v. Guinle, (1978) 3 All ER 193. The

Court identified four factors to be considered: (i) the owner must believe that the release of the information would be injurious to him or of advantage to his rivals or others; (ii) the owner must believe that the information is confidential or secret, that is, not already in the public domain; (iii) the ownerâ&#x20AC;&#x2DC;s belief must be reasonable; and (iv) the information must be judged in the light of the usage and practice of the particular industry or trade concerned.


NILS Law Review

November, 2014

Vol. 1

England and Wales has, however, laid down specific categories of information that can be regarded as trade secrets6. In contrast, in the United States, the Uniform Trade Secrets Act (―UTSA‖), which has been adopted by over forty States, identifies three essential elements of a trade secret. A trade secret: must be information such as a formula, pattern, compilation, program, device, method, technique or process; that has independent economic value available from only one source; and is the subject of reasonable efforts to maintain its secrecy7. This definition allows a business to protect, due to its potential value, information, which it does not presently intend to utilize, or which it has not or cannot presently fully develop. Furthermore, a trade secret need not necessarily be comprised of positive information, such as a specific formula, but can include negative, inconclusive or sufficiently suggestive research data that would give a person, skilled in the art, a competitive advantage he might not otherwise enjoy but for the knowledge gleaned from the owner‘s research investment8. CONCEPT OF TRADE SECRET AND CONFIDENTIAL INFORMATION There is no legislation in India defining term trade secret and confidential information. However the concept has been discussed widely around the world and we can sum up under these headings. WHAT IS TRADE SECRET? A trade secret refers to data or information relating to the business which is not generally known to the public and which the owner reasonably attempts to keep secret and confidential. Trade 6

Supra fn 3. The four categories of information laid down by the Law Commission are illustrative in nature. These

are secrets relating to highly specific products; technological secrets; strategic business information; and private collations of individual items of highly public information. 7

The definition reads as follows: ―A trade secret means information, including a formula, pattern, compilation,

program, data, device, method, technique, or process, that: 1. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and 2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.‖ 8

Glaxo Inc. v. Novopharm Ltd., 931 F Supp 1280, 1299 (EDNC 1996)


NILS Law Review

November, 2014

Vol. 1

secrets generally give the business a competitive edge over their rivals. Almost any type of data, processes or information can be referred to as trade secrets so long as it is intended to be and kept a secret, and involves an economic interest of the owner. For example, a business may have certain internal business processes that it follows for its day-to-day operations that give it an edge over its competitors. This could be regarded as a trade secret. The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) under the auspices of the World Trade Organization lays down the following three criteria for regarding any information as undisclosed information (or trade secrets): 

It must not be generally known or readily accessible by people who normally deal with such type of information;

It must have commercial value as a secret;

The lawful owner must take reasonable steps to keep it secret.

North American Free Trade Agreement (NAFTA) defines a trade secret as ―information having commercial value, which is not in the public domain, and for which reasonable steps have been taken to maintain its secrecy.‖ The Uniform Trades Secrets Act, 1970 also provides for the definition of trade secrets, which is as follows:―Information, including a formula, pattern, compilation, program device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy‖ Section 2(3) of Indian Innovation Bill defines Confidential Information as ―Confidential Information means information, including a formula, pattern, compilation, program device, method, technique or process, that: (a) is secret, in that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within circles that normally deal with the kind of information in question; (b) has


NILS Law Review

November, 2014

Vol. 1

commercial value because it is secret and (c) has been subject to responsible steps under the circumstances by the person lawfully in control of the information, to keep it secret. However, the definition in the Innovation Bill also appears to be based (more than the US model law) on Article 39.2 of the TRIPs agreement. Secret Information Information that is publicly known or easily accessible to the public cannot be held to be a trade secret. However, most courts require only relative or qualified, and not absolute secrecy9. Information may thus go beyond its initial source to other persons while at the same time remaining confidential10. It ceases to be a secret only when it is known to a substantial number of persons. Further, every part of the information need not be completely confidential to qualify for protection as a trade secret. A trade secret can include a combination of elements that are in the public domain, if the trade secret constitutes ―a unique, effective, successful and valuable integration of the public domain elements‖11. This principle simply recognises that the choice of individually known components and techniques to create a working manufacturing process is often a difficult undertaking. Where at individual steps of a process there are a variety of alternatives, the choice made through much effort of specific ingredients, materials, conditions and steps in an actual working process constitutes a trade secret. 

Independent economic value

Reasonable security measures

Trade secrets vis-à-vis other intellectual property rights Trade secret protection presents no conflict with the patent law, as it is consistent with the patent policy of encouraging inventions. However, for trade secret protection, uniqueness in the patent law sense is not required. Further, the owner of a trade secret, unlike the holder of a patent, does 9

K-2 Ski Co. v. Head Ski Co. Inc., 506 F 2d 471 (9th Cir. 1974) Stephens v. Avery, (1988) 2 All ER 477

10 11

Rivendell Forest Prods. Ltd. v. Georgia-Pacific Corp., 28 F 3d 1042, 1046 (10th Cir. 1994)


NILS Law Review

November, 2014

Vol. 1

not have an absolute monopoly on the information or data that comprises the trade secret. Other companies and individuals have the right to discover the elements of a trade secret through their own research and hard work12. Consequently, inventors of items that may meet the standards of patentability would prefer to seek patent protection because such protection is far superior to the protection afforded by trade secret laws. As far as copyright protection is concerned, there is no copyright in ideas and hence copyright law cannot protect confidential information. Section 16 of the Copyright Act, 1957 (â&#x20AC;&#x2022;the Copyright Actâ&#x20AC;&#x2013;) states that nothing in the Copyright Act should be considered as restraining an action for breach of confidence or breach of trust. There is thus no copyright pre-emption of trade secret misappropriation claims. Significance of Trade Secrets Trade secrets in the industrial economy have increased greatly in the past few years, for a number of reasons. There are mainly two reasons for that, one among them is that other forms of intellectual property like Patent, Trademark and Copyright have an element of uncertainty as compared to Trade Secret. Secondly, trade secrets have gained importance because, in many fields, the technology is changing so rapidly that it has surpassed the existing laws intended to encourage and protect inventions and innovations. Another significant factor which has enhanced the value of trade secrets is the relative ease of creating and controlling trade secret rights. There are no bureaucratic delays and no multiyear waits for government grants, such as those for patents. Trade secret rights, in contrast, can be established by the explicit conduct or agreement of the interested parties. A trade secret right starts upon the creation of the idea in some concrete form, and continues as long as secrecy is maintained. Protection of information such as ideas or information which does not qualify to be protected as intellectual property within the legal framework Intellectual Property Laws of the land can be protected by Trade Secrets. They also have the advantage of being lasting forever, again, as long as secrecy is maintained trade secrets have negative aspects. They are a volatile form of property, and they terminate when secrecy is lost. Also, they require constant vigilance

12

Kewanee Oil Co. v. BicronCorpn., 416 US 470, 490-91 : 40 L Ed 2d 315 (1974)


NILS Law Review

November, 2014

Vol. 1

to protect them. Nevertheless, trade secrets play a major role in protecting innovations and establishing rights to use new technology. It is thus important for the intellectual property practitioner to be alert to the intricacies of this large body of trade secret law. Confidential Information versus Trade secret A Trade Secret is some information or ―secret‖ that is important to the business and is not known to the public. It is a term commonly used to cover information that has commercial value. The law on ―trade secrets‖ is really about the protection of Confidential Information. Though there is no clear distinction between the both. At times both the concepts are so intermingled and overlapped that it‘s become difficult to draw line. The terms ―trade secrets‖ and ―confidential information‖ have been used somewhat interchangeably by the courts. ―Trade secrets‖ generally refers to information relating to more technical matters such as secret processes or formulas; and ―confidential information‖ relates to non-technical matters such as business plans or pricing information. Although many concepts and ideas may be public knowledge, courts have upheld confidential/trade secret information protection for (i) specific ways to implement ideas and, (ii) combinations of known concepts and ideas. Novelty and invention are not required. Though case law does not always define clearly whether trade secrets are synonymous with confidential information or proprietary information. Nevertheless, the case law does suggest that trade secrets and confidential information are essentially identical concepts.‖ Position in India The intellectual property laws in India have had an almost docile and stagnant existence ever since they were framed. Being a signatory of the TRIPs Agreement India is under an obligation to bring its intellectual property laws in conformity with international standards. India has achieved this to a large extent by enacting new and amending existing legislations on intellectual property laws. However, unlike the US and other developed countries India has no legislation dealing with trade secrets. In India protection of trade secrets is Common Law based. However, section 27 of the Indian Contract Act provides some sort of limited remedy; it bars any person from disclosing any information which he acquires as a result of a contract. There are scores of reasons for the


NILS Law Review

November, 2014

Vol. 1

absence of any statute dealing with trade secrets. India has since its independence followed a socialist pattern because of which the Indian legal system has always strived for social benefit and public rights as a result of which private rights like intellectual property rights have not been given any importance. Another reason for absence of any trade secret laws is the dependence of Indian economy on agriculture. Also, with the absence of big private corporate houses in India until recently there has hardly been any pressure on the government for granting statutory protection to trade secrets. Protection of trade secrets is a very important and one of the most challenging tasks for the Indian government as this will enhance the foreign investment in India giving a boost to the Indian economy. Foreign investors have to be assured of the protection of their trade secrets, so that they can do business with our country. A proper policy for trade secret protection will further enhance the security in our own industry. Almost all the countries in the world have a policy for the protection of trade secrets and India also being a signatory to the TRIPS is under an obligation to amend its laws or create a new law in order to safeguard the trade secrets of various businesses. So a proper policy for the protection of trade secrets in India is the need of the hour in order to provide a sense of security among the foreign investors and the local businessmen regarding their trade secrets which will further boost the Indian economy. As mentioned above, in India, no substantive authoritative text or case laws are available to determine the nature or ambit of trade secrets. But the Indian courts have tried putting the trade secrets of various businesses under the purview of various other legislations in order to protect them and also they have tried to define what a trade secret is in various cases, Trade Secret law has gained importance in India only recently with the intensification of competition. Coca colaâ&#x20AC;&#x2DC;s formula has been protected for over a century under Trade Secret law. Trade Secrets Protectionâ&#x20AC;&#x201C;Legal Position in India In India trade secrets is a most deserted field as there is no proper policy framework for the protection of trade secrets. Trade secrets in India are protected mainly through contract law. Section 27 of the Contract Act, provides remedy and it restricts a person from disclosing any information which he acquires at the time of employment or through a contract, but in this there is no provision of criminal remedy. As per Section 27 of the Contract Act confidential information must be highly confidential before it could be classifies as a trade secret. Further in deciding whether information amounted to a trade secret, the following factors are relevant - (a)


NILS Law Review

November, 2014

Vol. 1

the status of the employee and the nature of his work (b) the nature of the information itself (c) whether the employer impressed the confidentiality of the information on his employees (d) whether the information could easily be isolated from other information which the employee was free to use. An employer can prohibit lawfully his employee from accepting, after determination of his employment, such a position where he is likely to utilize the information of secret processes and trade secrets acquired by him during the course of employment. He may also covenant to prohibit his employee from setting up on his own, or accepting employment with the employer‘s competitors likely to destroy the employer‘s trade connections by a misuse of acquaintance with the employer‘s clients. In the Burlington Home Shopping Pvt. Ltd.v. Rajnish Chibber13, it was observed by the Court that Trade secret law protects a wide array of business data, Customer lists and other compilations of business data may be copyrightable as fact works. In theory, copyright and trade secret law protect different elements of compiled business data, with copyright protecting the expression in these compilations and trade secret law protecting the underlying data. In fact, copyright and trade secret protection for compilations of business data frequently converge. Copyright protection for business directories often extends to the underlying data, and trade secret protection may extend to particular expressive arrangements of data. In this Defendant was restrained from using Plaintiff‘s database consisting of compilation of the addressed of the clients. Court held that if the Defendant is permitted to make use of the Plaintiff's database, it is sure to cause an injury to the plaintiff, which would be incapable of being estimated in terms of money. In Niranjan Shankar Golikari v The Century Spinning and Mfg. Co. Ltd.14 Supreme Court held that an injunction to enforce negative contract, which is restricted as to time, can be issued in order to protect the employer‘s interest. In this case the Defendant was appointed for a period of five years on the condition that during this period he shall not serve anywhere else even if he left the service earlier. Later on he got himself employed somewhere else at a higher salary. Supreme Court observed that, information acquired by the Appellant and knowledge disclosed to him during this period was different from the general knowledge and experience that he might have 13 14

MANU/DE/0718/1995: 1995 (61) DLT 6 4 MANU/SC/0364/1967: AIR 1967 SC 1098: (1967)69 BomLR 535 Arvind Mills


NILS Law Review

November, 2014

Vol. 1

gained while in the service of the respondent company and that it was against his disclosing the former to the rival company which required protection. Therefore, it was held that the order to restrain him from divulging any and all information, instruments, documents, reports, etc., which may have come to his knowledge while he was serving the respondent company is justified. A clause relating to confidentiality of information in an agreement was held valid in the contract. V.N. Deshpandev15, in this matter Court considered a clause relating to confidentiality of information and stated that, Clause 9 of the agreement prevents the Appellant from divulging any secret information of the nature mentioned in that clause after the termination of his service. The Defendant is not prevented from acquiring knowledge, which makes him a better employee for the public for future employment. It only prevents him from divulging information, which he has received as respondents' employee to another party. It is; therefore, clear that the clause as worded is proper and an injunction granted in terms thereof is not unreasonable or wider latitude than justified in law. For the trade secrets protection an attempt was made in India by passing the National Innovation Act of 2008. Chapter VI of the Act talks about Confidentiality and confidential Information and provides remedies. This act allows parties to contractually set out the terms and conditions governing rights and obligations in respect of confidential information, including with a view to maintain confidentiality and prevent misappropriation. Further Court can restrict any person or class of persons impleaded in an action not to disclose the Confidential Information referred to in the claim without prior orders of the court16.â&#x20AC;&#x2013; Section 11 provides exceptions, in these conditions confidential information shall not have been misappropriated where, the Confidential Information was available in the public domain; or the Confidential Information has been independently derived by the alleged Misappropriate or, or by any third party from whom the alleged Misappropriate or received the information; or where disclosure of the Confidential Information is held to be in public interest by a court of law. But this draft couldnâ&#x20AC;&#x2DC;t come into existence.

15

MANU/MH/0080/1945: AIR 1946 Bom. 423: (1946)48 BomLR 90

16

8Section 10 of the National Innovation Act of 2008


NILS Law Review

November, 2014

Vol. 1

In the American Express Bank Ltd. v Ms. Priya Puri17, view of the Court was that the details of customers are not trade secrets nor they are the property. It was observed that any person of ordinary intelligence would become familiar with the customers whom he might serve along a laundry route during a period of five months. Further, freedom of employment must not be unreasonably abridged, and a contract in restraint of employment, without some reasonable limitation, is like a similar contract in restraint of trade, contrary to public policy and unenforceable. On the basis of this Court rejected the injunction application of the plaintiff and held that freedom of employee cannot restricted or curtailed on the ground that he had employer‘s data and confidential information of customers. The reason for upholding restraints against an employee is to prevent the proprietary rights of the employer if it is reasonable necessary in the case of trade connections or trade secrets, but it is not available if directed to prevent competition, or against the use of personal skill and knowledge acquired by the employee in his employer‘s business18. The employer cannot restrain the exercise of extra skill and knowledge acquired by the employee during the course of his employment 19.11Further, the enforceability of a restrictive convent does not extend to the business of the employer other than the one the employee was employed in20. In Zaheer Khan v Percept D‟mark (India) Pvt. Ltd.21, Supreme Court held that the restraint cannot operate beyond the contract period. A restrictive convent extending beyond the terms of the contract is void and unenforceable. Thus, restraint would be void if it affects future liberty after the period of contract is over. The restraint, under the Section 27 has to be reasonable in the interest of the parties. Protection of Confidential Information/Trade Secret in the Hand of Employees As businesses are growing out of their parochial moulds and going global, effective trade secret protection is becoming a necessity. Though there is no enactment in India that affords protection to trade secret, businesses can use the tools mentioned below to safeguard these trade secrets: 17 18

9MANU/DE/2106/2006: [2006] (110) FLR 1061

Herbert Morris Ltd. v. Saxelby, (1916-1917) All ERRep. 305 Mason v. Provident Clothing and Supply Co. Ltd, (1911-13) All ER Rep. 400. 20 Halsburys‘ Laws of England, Fourth Edn., Vol. 47, para 28. 21 MANU/MH/1576/2003: AIR 2004 Bom 362 19


NILS Law Review

November, 2014

Vol. 1

NON-DISCLOSURE AGREEMENTS Sound and concise company policies and non-disclosure agreements with the employees protecting confidential information and trade secrets are recommended so as to provide contractual remedy in addition to the one under the common law. Such agreements should define ―confidential information‖ and the exceptions to confidentiality. Agreements should have clauses negating a grant of an implied license, restrictions on disclosure, use and copy; restriction on use of confidential information upon termination of the employment, return of information upon termination and right to withhold salary and emoluments till such return. Non-compete clauses, depending upon their applicability in the Indian context, read with the confidentiality clauses would afford an organization added protection with respect to its confidential information. Such provisions must have a clear purpose, which is to restrict the use of confidential information and trade secrets obtained during employment and ensure that employees do not compete unfairly. However, non-compete provisions would need to be reasonable, and the Indian courts may treat a tough non-compete provision as unenforceable. In order to ensure that the rights of third parties are not violated, the non-disclosure/employment agreement should clearly impose an obligation on the employee not to integrate into the organization‘s data or intellectual property, any confidential information of a third party. Employees should be required to indemnify the organization in case of violation of this clause. If the organization has not executed such agreements at the time of employment, subsequently executed agreements should expressly cover the confidential information obtained by the employee from the date of his employment. INTERNAL PROCESSES Strong internal controls and processes to protect confidential information should be in place. Employees should be educated to identify information that is confidential or in the nature of a trade secret, to enable them to make an informed decision. They should have a clear understanding of their responsibilities to protect confidential matter and treat this as an on-going process that is integral to their work. Data that is confidential should be clearly indicated as such in all communications. Appropriate security procedures must be established and followed by the company and access to specific sensitive areas of workplace restricted or limited to certain senior


NILS Law Review

November, 2014

Vol. 1

employees only. Third-party interaction and disclosures should be channeled only through specified personnel. Wherever feasible, confidential information should only be shared with those employees who have a legitimate need to know such information, thus enabling the employees to perform the assigned tasks. AN EXIT-INTERVIEW During such an interview, an employee should be reminded of his obligations with respect to the company‘s confidential information and trade secrets and should be asked to sign a document reaffirming his obligations. If an employment agreement was signed, the document to be signed upon termination should be attached. A copy of the signed exit-interview form, including the employment agreement, must be given to the employee. Such an interview not only serves as a meaningful reminder but can also be valuable evidence of employee‘s knowledge of such obligations. Success of suits for protection of confidential information and trade secrets depends upon production of satisfactory evidence to prove confidentiality of the information, act of disclosure and the damages caused thereby, as well as the reasonability of such restriction. Trade Secret Vis-À-Vis Other Intellectual Property Right Trade secret protection presents no conflict with the patent law, as it is consistent with the patent policy of encouraging inventions. However, for trade secret protection, uniqueness in the patent law sense is not required. Further, the owner of a trade secret, unlike the holder of a patent, does not have an absolute monopoly on the information or data that comprises the trade secret. Other companies and individuals have the right to discover the elements of a trade secret through their own research and hard work. Consequently, inventors of items that may meet the standards of patentability would prefer to seek patent protection because such protection is far superior to the protection afforded by trade secret laws. As far as copyright protection is concerned, there is no copyright in ideas and hence copyright law cannot protect confidential information. Section 16 of the Copyright Act, 1957 (―the Copyright Act‖) states that nothing in the Copyright Act should be considered as restraining an action for breach of confidence or breach of trust. There is thus no copyright pre-emption of trade secret misappropriation claims.


NILS Law Review

November, 2014

Vol. 1

CONFIDENTIAL INFORMATION A subjective element was introduced by the decision in Thomas Marshall (Exports) Ltd. v Guinle where the plaintiff sought an injunction against the Managing Director who had set up a competing business. The Court observed that information became confidential only when the owner of the information has a reasonable belief that its release would be harmful to him and that it was outside the public domain. This implies that the belief of the owner of the information must be taken into account while determining whether information is confidential. These decisions were reviewed by the House of Lords in the famous Spy catcher case. A British spy published a book containing confidential information he had learnt during his career. Although the British Government sought an injunction, the action failed on the ground that the information had lost its confidential character, as this book was available in other countries. Hence, information must remain outside the public domain if it is to be protected. However, the Court did not decide whether the above reasoning tantamount to allowing the holder of confidential information to rid himself of the obligation of confidence by disclosure. Lord Goff explained the â&#x20AC;&#x2022;springboard principleâ&#x20AC;&#x2013; and held that disclosure by a third party does not release the confidant from his obligations. This reluctance shown by the courts to allow a confidant to benefit by breaching his confidence prevents an unequivocal declaration that information, which is confidential, cannot be public. Nonetheless, where the holder of the information himself discloses the information, no action for breach of confidence will lie. A lapse of time may also result in breach of confidentiality22. TORT OF BREACH OF CONFIDENCE A right of action for breach of confidence underpins and in many cases predates a more crystallised intellectual property right. The nature of such an action was considered in the leading Spycatcher case23where Lord Keith held that the obligation may exist independently of any contract, on the basis of an equitable principle of confidence. The rationale for such an action

22

(1978) 3 All ER 193 Attorney General v. Guardian Newspapers, (1988) 3 All ER 545

23


NILS Law Review

November, 2014

Vol. 1

seems to stem from the notion that information can be regarded as a property right. However, this assertion has been the focus of intensive debate24. A trade secret has both monopoly value and use value, but only the former will normally be affected by misuse of the secret. On this basis, some courts have held that information cannot be considered property25. Nevertheless, a comparison of the attributes of trade secrets with those of orthodox property reveals that some of the key attributes of orthodox property rights to create, use, alter, destroy, exchange etc. do seem to be shared by information26. However, the problem arises due to the fact that once the secret is revealed; the usual ideas of legal and equitable title cannot be applied27. Hence, courts have based the action for breach of confidence on other legal theories such as the notion of implied contract, the relationship of trust and confidence that existed between the parties and so on28. It is argued by some jurists that basing trade secret law on such concepts narrows its scope and creates greater scope for conflict as the law can afford protection only when such a relationship exists29. In such a circumstance, courts have examined trade secret protection in a new light viz. as a conflict between the freedom of the individual to support him and the policy of encouraging business enterprise30. ELEMENTS OF THE TORT The law of breach of confidence is concerned not with the acquisition of information, but with its subsequent ―use or disclosure‖31. The basic test for imposing an obligation for breach of 24

17. Cornish, W.R.: Intellectual Property (3rd Edn., 1996) at paras 8.49-8.53. See also Breach of Confidence, Law

Commission of England and Wales, Consultation Paper No. 110 (Her Majesty‘s Stationary Office, 1981), para 2.10. 25 26 27 28 29

18. Oxford v. Moss, (1979) 68 Cri 482. See also Hammond, R.G.: ―Theft of Information‖, 100 LQR 252 (1984). 19. Routhv. Jones, (1947) 1 All ER 179, 181 Note, ―Nature of Trade Secrets and their Protection‖, 42 Harv. L. Rev. 254, 257 (1928). 21. Martin, J.E.: Hansbury and Martin‟s Modern Equity (1st Edn., 1993), pp. 730-32.

, ―Equitable Protection of Trade Secrets‖, 23 Colum. L. Rev. 164 (1923). Merchants Syndicate Catalogue Co. v. Retailer‟s Factory Catalogue Co., 206 Fed 545 (1913)

30 31

24. Breach of Confidence, Law Commission of England and Wales, Working Paper No. 58 (Her Majesty‘s

Stationary Office, 1981), para 5.1. Similarly, the American Restatement of Torts in Section 757(b) imposes a duty for breach of confidence on a person who uses or discloses another person‘s secret without the privilege to do so.


NILS Law Review

November, 2014

Vol. 1

confidence was laid down in SaltmanEngg. Co. v. Campbell Engg. Co. Ltd.32where Lord Greene stated: (All ER p. 414 I)―If defendant is proved to have used confidential information, directly or indirectly obtained from a plaintiff, without the consent, express or implied of the plaintiff, he will be guilty of an infringement of the plaintiff‘s rights.‖ To this basic test, the additional requirements of ―unfair advantage‖ to the party and detriment caused by the unauthorized use were added33.Thus, the plaintiff in an action for breach of confidence must prove three things before he succeeds in his claim: 

Information must be in itself of a confidential character.

Imparting of information must occur in a circumstance of or an occasion of confidence.

Information must be used in an unauthorized way to cause detriment to the plaintiff.

Confidential information Initially, an objective test dependent on the expectations of reasonable men was adopted 34. A subjective element was introduced by the decision in Thomas Marshall (Exports) Ltd. v. Guinle35 where the plaintiff sought an injunction against the Managing Director who had set up a competing business. The Court observed that information became confidential only when the owner of the information has a reasonable belief that its release would be harmful to him and that it was outside the public domain. This implies that the belief of the owner of the information must be taken into account while determining whether information is confidential.These decisions were reviewed by the House of Lords in the famous Spycatcher case36. A British spy published a book containing confidential information he had learnt during his career. Although the British Government sought an injunction, the action failed on the ground that the information 32

. (1963) 3 All ER 413 (note) . Seagerv. Copydex Ltd., (1967) 2 All ER 415. See also Coco v. A.N. Clark Engineers Ltd., (1969) RPC 41. In this

33

case, there was a cooperative venture between the parties in respect of a new moped engine and when the venture failed the defendants made use of the confidential information acquired during the collaboration. There was no contractual relationship involved. However, the claim could not succeed because it did not satisfy the test laid down. 34

Holyoak, J. &Torremans, Paul: Intellectual Property Law (1st Edn., 1995), p. 384.

35

(1978) 3 All ER 193 Attorney General v. Guardian Newspapers, (1988) 3 All ER 545

36


NILS Law Review

November, 2014

Vol. 1

had lost its confidential character, as this book was available in other countries. Hence, information must remain outside the public domain if it is to be protected. However, the Court did not decide whether the above reasoning tantamount to allowing the holder of confidential information to rid himself of the obligation of confidence by disclosure. Lord Goff explained the ―springboard principle‖ and held that disclosure by a third party does not release the confidant from his obligations. This reluctance shown by the courts to allow a confidant to benefit by breaching his confidence prevents an unequivocal declaration that information, which is confidential, cannot be public37. Nonetheless, where the holder of the information himself discloses the information, no action for breach of confidence will lie38. A lapse of time may also result in breach of confidentiality39. The obligation of Confidence The obligation of confidence does not arise where the information is divulged in public or in other circumstances that negate the duty of holding it confidential40. This test, which is an objective one, focuses on the relationship between the parties. The types of relationships in which such an obligation is said to arise can be divided into three broad categories: 

Fiduciary relationships

Contractual relationships

Employee-employer relationship Misappropriation of Trade Secrets: Liability of Third Parties

American courts have developed the tort of misappropriation, which imposes liability on third parties for the use of trade secrets. This tort is not committed by a person who uses or publishes a trade secret unless that person has used some unlawful means or breached some duty created by

37

Supra fn 27, p. 387.

38

Mustad& Son v. Dosen, (1963) 3 All ER 416 Attorney General v. Jonathan Cape Ltd., (1975) 3 All ER 484

39 40

Supra fn 26. A typical example would be where the information is of commercial value and is passed on in a

commercial context such as in a joint venture.


NILS Law Review

November, 2014

Vol. 1

contract or implied by law resulting from some employment or similar relationship. It is the use of improper means to procure the trade secret, rather than the mere copying or use, which is the basis of liability. UTSA contains definitions of ―misappropriation‖ and ―improper means‖. The American Restatement of Laws has modernised the definition of ―improper means‖ to include ―the unauthorized interception of communications‖41. This implies that even computer hacking is included in the definition of improper means. The Restatement is clear that ―improper means‖ that are ―either wrongful in themselves or wrongful under the circumstances of the case‖ come within the tort of misappropriation42. 39. ―Misappropriation‖ means: (i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (ii) Disclosure or use of a trade secret of another without express or implied consent by a person who (A) Used improper means to acquire knowledge of the trade secret; or (B) At the time of disclosure or use knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who has utilized improper means to acquire it; (II) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or

41

American Restatement of Laws (1995, 3rd Edn.), § 43.

42

Ibid.


NILS Law Review

November, 2014

Vol. 1

(C) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake43. 40. ―Improper means‖ is defined to include theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy, or espionage through electronic or other means44. Though English courts have not framed the issue in terms of ―improper means‖, the rationale for imposing liability on third parties seems to be the same in both English and American law. Courts have held that even if there is no contractual nexus between the parties, liability arises if the confidentiality of the information is obvious45. It must be emphasised that third parties are liable only when the information is not only known, but also known to be confidential in character46. The Law Commission has recommended that the duty should be broader and prevent, for example, a company that has received information in confidence during the course of licensing negotiations from turning that information to its own use, though without disclosing it further 47. Thus, there is a need for reforming the law in this regard. In India, the tort of misappropriation has not gained judicial recognition. However, Indian courts can adopt the common law approach and grant relief. Non-Disclosure Agreements: An Overview To prevent the misuse of trade secrets, it is generally prudent business practice to enter into nondisclosure agreements. Trade secrets are considered the master‘s property, and therefore there is no rule of public interest, which invalidates an agreement that prevents their transfer against the master‘s will. However, the validity of such agreements has to be examined at the altar of Section 27 of the Indian Contract Act, 1872 (―the Contract Act‖), which states that every

43

UTSA Section 39 UTSA Section 40 45 Saltmanv. Campbell, (1963) 3 All ER 413n; Argyll v. Argyll, (1965) 1 All ER 611 44

46 47

Fraser v. Thames Television Ltd., (1983) 2 All ER 101 Supra fn 17, para 6.56.


NILS Law Review

November, 2014

Vol. 1

agreement by which a person is restrained from carrying on any trade, business or profession, is invalid. The Supreme Court in Niranjan Shankar Golikari v. Century Spg. & Mfg. Co., Ltd.48 enumerated the tests to determine the validity of agreements in terms of Section 27. A foreign producer collaborated with a company manufacturing type cord yarn on the condition that the company would maintain secrecy of all technical information and that it obtain corresponding secrecy arrangements from its employees. The defendant was appointed for a period of five years on the condition that during this period he shall not serve anywhere else even if he left the service earlier. Shelat, J. held the agreement to be valid. The defendant was accordingly restrained from serving anywhere else for the duration of the agreement. The restriction imposed in the present case was limited as to time, the nature of employment and as to area, and cannot therefore be said to be too wide or unreasonable or unnecessary for the protection of the interests of the respondent Company. The Court held that there is an implied term in a contract of employment that a former employee may not make use of his former employer‘s trade secrets. But subject to this exception, he is entitled to compete. Hence, even if the contract of employment had contained a covenant not to compete in respect of future contracts, such covenants would have been an unreasonable restraint of trade and void49. However, several United States courts have recognised the ―inevitable disclosure‖ rule, which permits a former employer to enjoin an employee from working for a direct competitor where the ―new employment will inevitably lead the employee to rely on the former employer‘s trade secrets‖50. Tort of Malicious Interference in Contractual Relations Where the parties have entered into a non-disclosure agreement and one of them reveals the secret to a third party in breach thereof, the holder of the secret can obtain an injunction restraining the third party from disclosing the information. English courts have developed the tort 48

49

AIR 1967 SC 1098 See Poonuswami: ―Public Interest and Restrictive Trade Practices in India‖, Indian Yearbook Intl. Affairs, 256,

280 (1963). 50

Pepsi Co Inc. v. Redmont, 54 F 3d 1262, 1269 (7th Cir. 1995)


NILS Law Review

November, 2014

Vol. 1

of malicious interference in contractual relations51. Under American law, UTSA lists inducement of a breach of the duty to maintain secrecy as an ―improper means‖ of discovery resulting in an action for misappropriation of trade secrets. Exceptions to Liability Disclosure of trade secrets is not actionable in all cases and courts have carved out a number of defences. THE GENERAL KNOWLEDGE EXCEPTION In common law, by a long-established principle of public policy, a former employee was free to utilise the general skill and knowledge acquired during his or her employment52. In America, the Economic Espionage Act does not apply to individuals who seek to capitalise on their lawfully developed knowledge, skill or abilities. The exclusion applies not only to the exploitation of the information for the employee‘s own benefit, but also to the employee‘s use of it for other employers53. The clearest test for distinguishing between trade secrets on the one hand and general knowledge and skill on the other, has been laid down by Cross, J. in Printers and Finishers Ltd. v. Holloway54. If the information in question can be regarded as a separate part of the employee‘s stock of knowledge, which a man of honesty and intelligence would recognise to be the property of his former employer, then an injunction could be granted. The apparent simplicity of this formula belies the practical difficulty in demarcating between the two. The problem is accentuated by employers‘ efforts to prevent disclosure of information by means of restrictive covenants.

51

The leading case is Lumley v. Gye, (1853) 2 E&B 216 : 118 ER 749, popularly known as Opera singer case, where

the Court recognised the tort. See A. Carpenter, ―Interference with Contractual Relations‖, 41 Harv. L. Rev. 728, 729-30 (1928). 52

Mason v. Provident Clothing and Supply Co. Ltd., (1913) AC 724, 740-41; Herbert Morris Ltd. v. Saxelby, (1916) 1 AC 688 53 Faccenda Chicken Ltd. v. Fowler, (1985) 1 All ER 724 54

(1965) RPC 239 : (1964) 3 All ER 54 and 731


NILS Law Review

November, 2014

Vol. 1

PARALLEL DEVELOPMENT The owner of a trade secret does not possess a monopoly on the data that comprises the trade secret. Other companies and individuals have the right to discover the elements of trade secret through their own research and hard work55. Thus, it is a defence if the defendant demonstrates that he independently developed the trade secret. REVERSE ENGINEERING The Legislative Comment to UTSA states, ―Discovery by reverse engineering‖, that is, starting with the known product and working backward to find the method by which it was developed, is considered proper means. Therefore, to avoid a successful claim by the defendant that he discovered the trade secret by reverse engineering, prosecutors should establish the means by which the defendant misappropriated the trade secret. For example, if the prosecution could show that the defendant unlawfully obtained access to the trade secret, it would refute his claim that he learnt the trade secret through reverse engineering. Further, a defendant cannot defeat a prosecution by claiming that the trade secret could have been discovered by reverse engineering56. INNOCENT ACQUISITION OF INFORMATION Information which the defendant acquired innocently, that is, without knowing that it was a trade secret belonging to a person who did not consent to the defendant‘s acquisition of it is not a trade secret under English law57. However, under American law, a person who learns of a trade secret innocently, without notice, is liable after receipt of notice unless he can prove that he has in good faith paid value for the secret or has so changed his position that to subject him to liability would be inequitable58.

55

Supra fn 15.

56

Telerate Sys. Inc. v. Caro, 689 F Supp 221, 232 (SDNY 1988). The Court held that the proper focus of inquiry is

not whether an alleged trade secret can be deduced by reverse engineering but rather, whether improper means are required to access it. 57

Supra fn3.

58

55. 56. American Restatement of Tort Laws (1939) § 758(b).


NILS Law Review

November, 2014

Vol. 1

THE PUBLIC INTEREST EXCEPTION It is well established that no liability attaches to the use of information, which it was in the public interest to use or disclose. A defendant in proceedings for breach of confidence shall not be liable to the plaintiff in respect of any disclosure or use of information by the defendant in breach of an obligation of confidence if (a) the defendant raises the issue of public interest in relation to that disclosure or use; and (b) the plaintiff is unable to satisfy the court that the public interest relied on by the defendant under that sub-section is outweighed by the public interest involved in upholding the confidentiality of the information. STATUTORY OBLIGATION / EXERCISE OF POWER If the information is used or disclosed in accordance with a statutory obligation or power, the defendant is not liable. For instance, if the information is disclosed pursuant to a court order, or otherwise for the purpose of legal proceedings, it comes within the exemption. Similarly, the use or disclosure in the interests of national security or for the prevention, investigation or prosecution of crime is permissible. However, the disclosure must be to someone who has a â&#x20AC;&#x2022;proper interestâ&#x20AC;&#x2013; to receive the information in question59. Concluding codification In India, trade secret protection is still in a nascent stage, with no special legislation codifying the principles of trade secret law. This is contrary to the global trend towards codification of the common law. Though, the equitable principle of fiduciary relationships has been codified in the Securities Exchange Board of India (Prohibition of Insider Trading) Regulations, 1992, which renders the use and disclosure of confidential information by an insider subject to prosecution under the Securities Exchange Board of India Act, a third party who makes use of this information is not liable. In this era of globalisation, multinational corporations want assurances that the national law will protect their secrets. This is clear from the TRIPS Agreement, which refers to Article 10 of the Paris Convention, and incorporates a duty on signatories to protect confidential information. The kind of protection envisaged by the TRIPS Agreement is not afforded by the Indian law relating 59

Initial Services v. Putterill, (1968) 1 QB 396, 405 : (1967) 3 All ER 145


NILS Law Review

November, 2014

Vol. 1

to trade secrets. The TRIPS Agreement casts an obligation on India to codify the law on trade secrets. Even Asian countries like Korea and Japan have codified the common law on trade secrets as far back as 1990. India should follow their example in this regard. Trade secret law can protect even an invention that is unpatentable because it does not meet the legal requirements for patentability. Further, before a patent is obtained for a new idea, the inventor may want to disclose it to a prospective user, purchaser or backer. Indian businessmen forced to bear the high expense of patent litigation may be at a disadvantage when compared to their foreign counterparts. Hence, the North-South debate that often arises when it comes to patent law has no relevance in this regard. Indian businessmen relying on trade secrets will have a better protection if the common law principles are given concrete shape. Trade secret law facilitates trade and hence it is high time that the Indian Government wakes up to the need to reform the trade secret law. The Innovation Bill of 2008 is considered to be a dynamic approach towards protection of Trade secret but it has been argued invariably and needs to be emphasized. To conclude, Enactment of a strong statute for protection of confidential information and trade secrets would certainly help the Indian industry. In any event, strategies for protection of the organization‘s confidential information and trade secrets have, in today‘s economic scenario, become a prerequisite to the organization‘s survival. Although realizing the need of legislation for the protection of trade secrets, the Indian legislature came up with a bill named as ―The Personal Data Protection Bill‖ which was introduced in Rajya Sabha on 8th December, 2006, but unfortunately the bill has not been passed till now and is pending the approval of the Indian Parliament before it can become an act.


NILS Law Review

November, 2014

Vol. 1

Possible Effects of TRIPS on Patents in India -

Kiran Kachhawala

Introduction As said by the Thomas Jefferson, ―If nature has made any one thing less susceptible than all others of exclusive property, it is the action of thinking power called an idea‖1. Technological advancement in the modern scenario have not even left this untouched even they are being commercialized and converted in the form of Intellectual Property. Developed Countries who were having ample of resources in their hand were the one who created environment for protecting Intellectual Property as there existed possibility of lucrative profits. Thus a need was felt to protect and patent this idea. This led to the occurrence of the rat race between the various companies for increasing the ambit of R&D activities and inventing the new products. Perseverance on the part of the developed countries started to strengthen the IPR protection 2. This led to various Conventions and finally it emerged in the form of Trade Related Intellectual Property Rights or the TRIPS agreement3. As the vanguard for protection of human ingenuity, creativity, innovation and enterprise; intellectual property rights have been elevated to a venerable position. The indubitable intendment of IPRs is further fortified in the state of the art knowledge driven economies, which burgeon on innovation, industrial and enterprise progress. Due to rapid advancement in technology the goods graced with IPR can be pirated very easily it thus started creating fear in the mind of exporters .Thus they toil to bulwark their goods from unwarranted intrusion and imitation in importing countries. Differential treatment of it also leads to ludicrous results. In order to meet such situations and to ensure that IPRs do not obliterate free trade, the TRIPS provides for minimum standards of IP protection. All the members of the WTO are under an

1

V.R.Krishna Iyer, ―Off the Bench‖ Watal, J. (2000). Access to Essential Medicines in Developing Countries: Does the WTO TRIPS Agreement Hinder It? Science, Technology and Innovation Discussion Paper No. 8, Center for International Development, Harvard University, Cambridge, MA, USA. 3 Daniel Gervais, The TRIPS Agreement- Drafting History and analysis, 3rd Edition, 2008. 2


NILS Law Review

November, 2014

Vol. 1

obligation to abide by the provisions of TRIPS. India as a member of WTO accustomed the discrepancies existing among the TRIPS and law of land. India has to abide because of its commitment under TRIPS to provide mechanism for ensuring access to the medicine at the affordable prices. The critical issue was the reintroduction of the product patent regime and the limitations that this change has imposed on its ability to produce technologies through reverse engineering4. It was widely held that the future prospects of the industry hinged critically on the ability of the policy makers to exploit the flexibilities that existed in the framework provided by the Agreement on TRIPS. In this context TRIPS represent a move in the opposite direction, itâ&#x20AC;&#x2DC;s possible effect cannot be ascertained. Thus, the objective of the present paper is to provide some insight on the above issue, by examining the possible effects of TRIPS on Patent in India. Indian Patent Regime - Pre TRIPS and Post TRIPS Position Patent law in India had its origins in the patent system introduced by Great Britain,5 which ruled India for almost a century6. The story of patents in India dates back to the first Indian patent law - which was enacted in 1856 and modeled on the same lines as the British Patent Act of 1852. A proper institution and authority for the administration of patents, however, was not established until the appointment of the Controller of Industrial Patents and Designs by the Indian Patents and Designs Act in 19117. Under the 1911 Act, a new drug was patentable, provided the process of manufacturing was described. A patentee could prevent others from producing a new patented drug by describing all the known and possible processes and, hence, effectively enjoyed product patent rights. In 1959 the Government of India appointed the Justice Rajagopala - Ayyangar Committee to suggest revisions to the patent law8. In 1965, based on this report, a bill was introduced, but this bill lapsed in 1965 and again in 1966. This bill was re -introduced in 1967 and eventually passed as the Indian Patent Act of 1970. The rules based on this act were passed in 1971 and the act along with the rules came into force in 1972. 4

Narayan P.,Intellectual Property Law,Eastern Law House, Calcutta (2 nd Edition,1997). Rajesh Sagar, Introduction of Exclusive Privileges/Patents in Colonial India: Why and for Whose Benefit, 2 INTELL. PROP. Q. 164, 166 (2007). 6 Denis Judd, The Lion and The Tiger : The Rise and Fall of British Raj,, 1600-1947, 14-27 (2004). 7 See History of Indian Patent System, INTELL. PROP. INDIA para. 3, http://www.ipindia.nic.in/ipr/ PatentHistory.htm 8 N. Rajagopala A yyangar, Report on the Revision of the Patent Law (1959).42. 5


NILS Law Review

November, 2014

Vol. 1

THE PATENTS ACT, 1970 The Patents Act, 1970 by permitting a patentee to patent only one process, abolished the product patent regime which prevailed under the Act of 1911. In pursuance of its domestic interests, India did not provide for product patents for pharmaceutical and agricultural chemical inventions9. But with the coming of TRIPs, IP laws had to be amended and the Indian Patents Act, 1970 underwent substantial changes. Compliance with the TRIPs requirements has taken substantial time in India. In its journey towards TRIPs compliance, India was involved in the ―mailbox dispute‖ (1997), and in the ensuing years, the Indian Patent Act, 1970 was amended in tandem with the TRIPs agreement. Apart from the mailbox dispute under the WTO, India was also confronted with the gigantic task of meeting domestic concerns. There was vociferous opposition by the Indian pharmaceutical industry against the proposed amendments in line with TRIPs requirements. INDIA’S PATENTS (AMENDMENT) ACT, 1999 Ultimately enacted in March 1999, India‘s Patents (Amendment) Act, 1999, formally implemented the mailbox procedure for patent applications claiming pharmaceutical and agrochemical products and made it retroactive to January 1, 1995. The 1999 Act also formally implemented EMRs10. Mailbox applications went into a symbolic ―black box,‖ not to be taken out for examination nor even published by the Indian Patent Office until on or after January 1, 2005. This amendment introduced Chapter IVA dealing with exclusive marketing rights. The amendments under Section 24A (1) mandated the Controller to refer every application seeking an EMR to an examiner to see whether it is was an invention for which a patent could be granted under Section 3 and 4 (and not under Section 5 which previously excluded drugs etc). Section 24B(1)(b) authorized the grant of an EMR for five years for inventions made in India on or after January 1, 1995 and for which a claim for process patent had already been made, and granted. In the case of substances that could be used as medicines or drugs, Section 24B(2) provided that 9

Santanu Mukherjee, The Journey of Indian Patent Law Towards TRIPs Compliance, 35 INT‘L REV.INTELL. PROP. & COMPETITION L. 125, 128-29 (2004). 10 The Patents (Amendment) Act, 1999, No. 17 sec. 24(B)(1)(a)-(b), Acts of Parliament, 1999 (India), available at http://ipindia.nic.in/ipr/patent/patact_99.PDF.


NILS Law Review

November, 2014

Vol. 1

prior publication or use, before the filing of the claim for patent by the applicant either in India or in a convention country, will not constitute EMR infringement. THE 2002 AMENDMENT The second of the three amending acts in the evolution of India‘s patent laws towards TRIPS compliance was the Patents (Amendment) Act, 2002, which took effect June 25, 2002. The 2002 Act implemented a number of important changes, but most significant was the extension of patent term to twenty years11. Prior to this amendment, Indian process patents lasted only for the shorter of five years from sealing or seven years from the date of the patent, while the term of all other types of patents (e.g., mechanical devices) was fourteen years from the date of the patent12. The Patents (Amendment) Act, 2002, implemented a myriad of other changes intended to bring India‘s patents law into accord with the TRIPS Agreement, including new definitions of ―invention‖ and ―inventive step13,‖ new exclusions from patentable subject matter, a new burden of proof provision for cases of process patent infringement, and a revised compulsory licensing framework due to the shifting burden of proof from plaintiff to defendant, a manufacturer will be required to provide the details of the manufacturing process to rebut the presumption of the infringement of a process patent. Also, a change has been brought about in the regime of compulsory licensing for a non-working patent. It can now be granted even if the patented invention is not working in India14. Other grounds for issuing it include – national emergency, public noncommercial use which may arise, or is required as the case maybe, including public health crisis relating to AIDS, HIV, tuberculosis, malaria or other epidemics.

11

The Patents (Amendment) Act, 2002, No. 38 sec. 2, Acts of Parliament, 2002 (India), available at http://www.ipindia.nic.in/ipr/patent/patentg.pdf (amending section 53). This was mandated by Article 33 of the TRIPS Agreement. 12 Id.; The Patents Act, No. 39 of 1970, INDIA CODE sec. 53(1) (1998). 13 The Patents (Amendment) Act, 2002, No. 38 sec. 3, Acts of Parliament, 2002 (India), available at http://www.ipindia.nic.in/ipr/patent/patentg.pdf (amending section 2(1), (j) and adding sections 2(1), (ja)). 14 The Patents (Amendment) Act, 1999, No. 17 sec. 87, Acts of Parliament, 1999 (India), available at http://ipindia.nic.in/ipr/patent/patact_99.PDF; see The Patents (Amendment) Act, 2002, No. 38, Acts of Parliament, 2002 (India), available at http://www.ipindia.nic.in/ipr/patent/patentg.pdf (abolishing section 87 of the Patents (Amendment) Act of 1999); see also M. B. RAO & MANJULA GURU, PATENT LAW IN INDIA 251 (2010).


NILS Law Review

November, 2014

Vol. 1

THE 2005 AMENDMENT The last step in India‘s implementation of the changes required to make its patent law TRIPS compliant happened by way of the 2005 amendment. Through this amendment, Indian law, for the first time since 1970, allowed patent protection to substances capable of being used as pharmaceuticals, food, and agro-chemicals15. The 2005 amendment was preceded by a presidential ordinance in 2004. After its promulgation, there were intense debates about the scope of various provisions, but the Indian Parliament enacted the 2005amendment after making changes in the ordinance16.The 2005 amendments contain many controversial features that have caused many disputes. They include elaborate provisions concerning what is and is not considered patentable subject matter17, a new definition of the ―inventive step‖ criterion of patentability18, procedures governing both pre- and post-grant opposition19, and a more liberal framework for compulsory licensing20. Effect and Implications of TRIPS in India ACCESS TO MEDICINES Although the 2005 Act make significant changes but the most controversial provision is the introduction of product patents for pharmaceutical inventions. This can led adverse impact on important drugs and consequently steep rise in drug prices. The available TRIPS flexibilities have not been exploited appropriately and that adequate safeguards have not been built in to ensure an affordable supply of medicines.

15

The Patents (Amendment) Act, 2005, No. 15 sec. 3, Acts of Parliament, 2005 (India), available at http://ipindia.nic.in/ipr/patent/patent_2005.pdf (deleting section 5 of the 1970 Law which prohibited product patents on the said substances). 16 The Patents (Amendment) Ordinance, 2004, No. 7, Acts of Parliament, 2004 (India), available at http://lawmin.nic.in/Patents%20Amendment%20Ordinance%202004.pdf. 17 These changes inserted by substituting Section 3(d) of the 1970 Law with a new definition. The Patents (Amendment) Act, 2005, No. 15 sec. 2, Acts of Parliament, 2005 (India), available at http://ipindia. nic.in/ipr/patent/patent_2005.pdf. 18 These changes inserted by substituting section 2 (ja) of the 1970 Law with a new definition. 19 These changes inserted by substituting Sections 25 and 26 with a new definition. Id. at sec. 23. 20 These changes inserted by adding Section 92A to the 1970 Law. Id. at sec. 55.


NILS Law Review

November, 2014

Vol. 1

COMPULSORY LICENSING As mentioned earlier, the provision of two new grounds for compulsory licensing (one in respect of exports to countries that lack manufacturing capabilities and the other in respect of the manufacturing of drugs21 that are the subject matter of mailbox applications) would go a long way towards ensuring that local industry can continue to manufacture at a cost lower than the innovative drug company22. However, despite these new grounds, the new regime has done little to ease the administrative and procedural bottlenecks that constrained the invocation of compulsory licensing provisions under the old regime. BURDEN OF PROOF Ordinarily, in a case of infringement of a patent, the burden lies on the party so claiming i.e. the plaintiff. However, in order to further prevent and prohibit reverse engineering techniques, the TRIPS has made provisions for shifting the burden from the plaintiff to the defendant. This means that in a case of infringement of a process patent it is for the defendant to prove the process to obtain an identical product is different from the patented process. RETROSPECTIVE DAMAGES Section 11A (7) provides that patentees are entitled to claim damages retrospectively from the date of publication of their patent applications. The Act, however, provides that such retrospective rights under section 11A do not apply to pharmaceutical mailbox applications. This result, coupled with the fact that the twenty-year patent monopoly term runs from the date of the mailbox application and not from the date of grant, will reduce the strength of drug patents that fructify from mailbox applications, a consequence likely to benefit the continued production of generics at low prices. Therefore, the failure to grant retrospective remedies to mailbox applications, coupled with making them automatically susceptible to compulsory licensing provisions, will ensure that the supply of existing generic drugs at affordable prices is not unduly hampered. To a limited extent, generic manufacturers could also avail of the research exemption and the wide Bolar provision in section 107A. 21

The Patents Act, No. 39 of 1970, INDIA CODE (1995) sec. 84(1)-(6), available at http://indiacode.nic.in. The Patents Act also includes a list of instances where the reasonable requirements of the public shall be deemed to be unsatisfied. 22 The Patents (Amendment) Act, 2005 sec. 55 (updating ยง 92A).


NILS Law Review

November, 2014

Vol. 1

REVERSE ENGINEERING According to Article 27 of the TRIPS Agreement, all member countries have to grant patents in all fields of technologies, whether products or processes earlier some developing countries granted only process patent, including India, which allowed for Reverse Engineering to create the product through a different process23. In this way they were able to foster indigenous technology that would generate local, no cost products for domestic markets. In time, some countries were able to parlay this advantage into the international sphere as well THE PATENTABILITY THRESHOLD The question of whether the new regime will have an impact on access to new drugs is more vexed. This will depend significantly upon the scope of patentability of pharmaceutical inventions. Notwithstanding calls by civil society to restrict the patentability of pharmaceutical inventions to only new chemical entities (NCEs), no such express limitations were introduced. However, this does not automatically mean that all such substances (including new chemical entities, formulations, new drug delivery systems etc) will merit patent protection. Rather, the more rigorous requirements for ‗inventive step‘ introduced by the 2005 Act and the expansive ‗new use‘ exclusion could help in curbing new grants. PATENT PROTECTION The TRIPS Agreement extends the scope of patent protection to both products and processes. It would therefore be possible to apply for patent rights over products for 20 years, and thereafter, further periods of 20 years each could be applied for products covered by patented processes. Some experts also caution that the 20-year protection can also be abused to extend the monopoly through process patents as well as patents on usage form, dosage form and combination form24. In the US for example, patents have been taken on new combinations of drugs even when the product patent on the basic drug – the active ingredient - has long expired25. Monopoly

23

Cornish W.R,Intellectual Property (Sweet and Maxwell,London),1989,p.205 Lanjouw J. O., (2002) Intellectual Property and the availability of pharmaceuticals in poor countries, Center for Global Development Working Paper No. 5¤ April, 2002. 25 Lall Sanjaya, (2003) Indicators of the relative importance of IPRs in developing countries, Forthcoming in Research Policy. 24


NILS Law Review

November, 2014

Vol. 1

protection would be extended through minor changes to the existing medicines where the product patents have expired. OPPOSITION MECHANISM Apart from this, the robust opposition mechanism (pre-grant and post-grant) could be leveraged to filter out frivolous patents. PRICE CONTROL / COMPETITION REGIME Fears that the price of patented pharmaceutical inventions may spiral also fail to take into account price control mechanisms and the newly instituted competition regime in India26. SPURRING AN INNOVATION CULTURE IN INDIA The multinational pharmaceutical industries argue that a product patent regime is essential for encouraging R&D in new drugs and catapulting the domestic industry into the innovative drug sphere27. It needs to be noted however that basic reverse engineering skills (organic chemistry skills) are different from the skills required to arrive at new drugs (medicinal chemistry skills) 28. Besides, the costs of researching upon and introducing a new drug into the market are colossal. It therefore remains to be seen whether incentives through a patent regime will achieve the desired results and whether Indian companies will be able to compete with global multinational companies on this turf. Conclusion From such a blurred scenario, it is utmost arduous task to predict the future of the Indian pharmaceutical industry under the new regime of intellectual property rights and its relationship with international trade. Certain trends can be highlighted in this context. Firstly, despite of the fact that the market structure of Indian Pharmaceutical Companies is not oligopolistic even

26

Chaudhuri Sudip., (2002) 'TRIPs agreement and Amendment of Patents Act in India'. Economic and Political Weekly Vol. 37, No. 32, 3354-3360. 27 National Institute of Science Technology and Development Studies (NISTADS). Indian patenting activity in international and domestic patent system-: contemporary scenario. New Delhi: Office of the Principal Scientific Adviser to the Government of India; 2005. 28 Lanjouw, J.O. and Cockburn, I. M. (2001) New pills for poor people? Empirical evidence after GATT, World Development, Vol. 29, No. 2, pp. 265-289.


NILS Law Review

November, 2014

Vol. 1

though it will have to face stiff competition in the international scenario .This can also continue in long run if we take a glance at the trends in research and development .Therefore, Indian companies can either go for collaboration or concentrate on producing and marketing generic drugs. This conclusion is based on a realistic assumption which takes into account the poor research and market penetration strategies of Indian companies. On the other hand it is unlikely that global pharmaceutical will consider India as the base for exploring new drug thus it can only become an assembly point for some of the drugs. After India consented to become a founding member of WTO and acceded to the TRIPS Agreement, the product patent regime was introduced after a gap of 35 years. The Pharmaceutical industry will foresee worst effect of TRIPS in the form of ceasing of imitation. Now it has to concentrate on basic research. In absence of patent for new product the companies will be unable to offer new drugs to customer. It may also lead to closing of number of units .Its compliance has even posed some challenges to the pharmaceutical industry: such as the industry feels that the TRIPS in its present form, is inclined towards developed nations and multinational pharmaceutical firms .Right to trade also comes in conflict with it. Not only this, it also violates the human right and act as a clout on ability of the industry to slot in sustainable development. It may be inferred that TRIPS is not likely to have significant effect on incentive for creation of innovatives. The object of the agreement aimed at harmonizing IP related laws and regulation is not implemented fully, The precarious point is the concern about the position that the Indian government need to take regarding TRIPS and itâ&#x20AC;&#x2DC;s so called effect on the pharmaceutical sector. This issue must be approached from both economic and political point of view. In this regard the government is left with the two options, either to introduce an effective mechanism on availability, price and access of essential drugs or to develop facilities for introducing new drugs. This can help in catering to the needs of the country. Global businesses do not have any interest in developing tropical drugs. Given its traditional medicinal plant base, India can take a leading position in developing, producing and exporting those drugs. The drug policy of the government has to be a pro-active one â&#x20AC;&#x201C; to take advantage of the TRIPs regime. Compatibility between the above-mentioned two options serves as a base for rational and need-based drug policy.


NILS Law Review

November, 2014

Vol. 1

Profile for The Network for International Law Students (NILS)

NILS Law Review (Vol 1)  

NILS Law Review is a double-blind, peer-reviewed law journal published by the publication team of The Network for International Law Students...

NILS Law Review (Vol 1)  

NILS Law Review is a double-blind, peer-reviewed law journal published by the publication team of The Network for International Law Students...

Advertisement