European Court of Human Rights
Case BriefsForeign Courts

   

European Court of Human Rights (Grand Chamber): While deciding a matter concerning discriminatory treatment towards a widower taking care full-time of children, by terminating his survivor's pension when youngest child had reached adulthood, the Grand Chamber of the Court, with 12 votes to 5 votes, held that the applicant's rights under Arts. 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, have indeed been violated when Swiss authorities terminated the payment of his widower's pension. It was held that the Swiss Government did not show very strong reasons or “particularly weighty and convincing reasons” justifying the difference in treatment on grounds of sex complained of by the applicant and accordingly found that the unequal treatment to which the applicant was subjected to, cannot be said to have been reasonably and objectively justified.

Facts of the Case: The case originated in an application against the Swiss Confederation lodged under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘the Convention’) by a Swiss national, Max Beeler. The applicant is a father of two children, who lost his wife in an accident in 1994 and decided to leave his job at the insurance company to devote himself full time to take care of his daughters. The applicant was granted a widower's pension at a monthly rate of approximately 920 Swiss francs (CHF), together with supplementary benefits. His daughters were granted orphans’ pensions amounting to CHF 459 per month, and later received education allowances up to the age of 25.

In 2010, having noted that the applicant's younger daughter was about to reach the age of majority, the Compensation Office (Ausgleichskasse) of the Canton of Appenzell, Outer Rhodes, terminated the payment of the applicant's widower's pension.

Legal Trajectory: The applicant lodged an objection, relying on the principle of gender equality enshrined in the Swiss Constitution. The objection was rejected on the ground that that the Swiss legal system did not provide for a review of constitutionality.

The applicant subsequently appealed to the Cantonal Court, arguing that there were no grounds for treating him less favourably than a widow with children above the age of 18, who remained eligible for a widow's pension. The Cantonal Court dismissed the appeal noting that the conditions for entitlement to a pension that were applicable to widows and widowers respectively under Sections 23 and 24 of the Federal Law on old-age and survivors’ insurance were different, a situation that on the face of it was incompatible with the requirements of the Swiss Constitution. The Cantonal Court pointed out that during the tenth revision of the old-age and survivors’ insurance (“OASI”) system in 1997 the legislature had been aware of the difference in treatment between widowers and widows but had taken the view that since there were still relatively few house- husbands, they could be expected to return to employment once their child-raising duties ended. The Cantonal Court held that only the legislature could change that situation, and that at all events the courts could not refuse to apply the clear letter of the law.

Alleging violation of his rights under the ECHR Convention, the applicant reached the Federal Supreme Court, but his application was dismissed. The Supreme Court stated that distinctions on grounds of sex could only be justified where the biological or functional differences between men and women rendered equal treatment quite simply impossible. It further noted that Switzerland had not ratified Protocol No. 1 to the Convention and was therefore not bound by that instrument. As regards the complaint under Art. 14 in conjunction with Art. 8 of the Convention, the Federal Supreme Court found that it could not be inferred from the case-law of the European Court that Art. 8 of the Convention required States to provide specific social security benefits.

Core Contentions:

The applicant submitted that that as a widower who had been bringing his children up alone since his wife's death, he had suffered discrimination as compared to widows looking after their children alone, given that he had lost his entitlement to a widower's pension when his younger daughter had reached the age of majority, while the corresponding pension remained payable to widows with children of the same age.

The Swiss government on the other hand, contended that the differential treatment towards the applicant was not based on gender stereotyping but on social reality. It was further argued that widow's pension, which had been introduced in 1948 was based on the assumption that, the husband provided for his wife's maintenance, particularly where she had children. Although the Swiss government had made several subsequent attempts to reform the widows’ and widowers’ pension system with a view to gradual harmonisation, but their plans had not come to fruition.

The Court's Assessment, Findings and Decision: The Majority comprising of Judges Robert Spano, Síofra O’Leary, Marko Bošnjak, Yonko Grozev, Pere Pastor Vilanova, Jovan Ilievski, Péter Paczolay, Arnfinn Bårdsen, Saadet Yüksel, Anja Seibert-Fohr, Ioannis Ktistakis, Andreas Zünd, and Søren Prebensen (Deputy Grand Chamber Registrar), perused the matter at hand.

• The Majority reiterated that Art. 14 of the Convention affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention and the Protocols thereto.

• Relying on several of its precedents, the Court observed that differences based exclusively on sex require “very weighty reasons”, “particularly serious reasons” or, as it is sometimes said, “particularly weighty and convincing reasons” by way of justification and that the States cannot impose traditions deriving from the idea that the man plays a predominant role and the woman a secondary role in the family.

• It was further noted that while the Convention places no restrictions on the Contracting States’ freedom to decide whether or not to have in place any form of social security scheme, thus, if a State does decide to create benefits or pension schemes, then it must do so in a manner which is compatible with Art. 14 of the Convention.

• The Court referred to Konstantin Markin v. Russia, (GC, no. 30078/06, ECHR 2012), wherein it was stated that “Article 14 of the Convention is pertinent if “the subject matter of the disadvantage (…) constitutes one of the modalities of the exercise of a right guaranteed …”, or if the contested measures are “linked to the exercise of a right guaranteed ...”

• The Court noted that the applicant was in “an analogous situation in terms of his subsistence needs, the applicant was not treated in the same way as a woman/widow. He was therefore subjected to unequal treatment on account of the termination of his widower's pension”.

• Determining whether the differential treatment towards the applicant was reasonably justified, the Court observed that the present case concerns the field of social welfare, which constitutes a complex system in which a balance must be preserved, and that accordingly, a wide margin is usually allowed to the State when it comes to general measures of economic or social strategy. It was further noted that advancement of gender equality remains a major goal in the member States of the European Council. However, the Court reaffirmed that references to traditions, general assumptions or prevailing social attitudes are insufficient justification for a difference in treatment on grounds of sex, whether in favour of women or men. “It follows that the Government cannot rely on the presumption that the husband supports the wife financially (the “male breadwinner” concept) in order to justify a difference in treatment that puts widowers at a disadvantage in relation to widows”. The Court pointed out that the attempted reforms as highligted by the Swiss government, clearly show that the old “factual inequalities” between men and women have become less marked in Swiss society. Accordingly, the considerations and assumptions on which the rules governing survivors’ pensions had been based over the previous decades are no longer capable of justifying differences on grounds of sex.

• The Court pointed out that applicant was 57 years old when the pension was stopped and had not been in gainful employment for over sixteen years and there is no reason to believe that the applicant, at that age and following a lengthy absence from the labour market, would have had less difficulty in returning to employment than a woman in a similar situation, or that the termination of the pension would have had less impact on him than on a widow in comparable circumstances.

• Furthermore, the Court held that the applicant sustained non-pecuniary damage owing to the authorities’ refusal to grant him a widower's pension. Thus, making an assessment on an equitable basis as required by Art. 41 of the Convention, the Court found it appropriate to award the applicant the sum of EUR 5,000. The Court also awarded the applicant a total sum of EUR 16,500 in respect of costs and expenses.

Dissenting Opinion:

• In a joint dissent Jon Fridrik Kjølbro, Gabriele Kucsko-Stadlmayer, Pauliine Koskelo, Stéphanie Mourou-Vikström and Peeter Roosma, JJ., observed that the majority making a significant expansion vis-a-vis the applicability of Art. 8 when invoked together with Art. 14 in the field of social welfare benefits, is concerning and dubious in principle. It was observed that the expansive approach means that the ensuing legal implications and novel uncertainties will from now on affect the entire Convention system throughout all the jurisdictions within its geographical sphere.

• The dissenting Judges further observed that the judgment defines the ambit of the right to respect for family life in a problematic way. The “subject matter of the disadvantage” suffered by the applicant was not an inability to receive a survivor's pension when his children were still minors, but the inability to receive a survivor's pension once his children had reached adulthood. The applicant had been the beneficiary of a survivor's pension. His entitlement to that pension was conditional on his position as the surviving parent of minor children. Neither the receipt of the pension nor its amount was tied to the applicant becoming a full-time career of those children. He would have received the survivor's pension regardless of the manner in which the care of the children was organised.

• The Judges further pointed out that the applicant knew from the very beginning that the duration of the pension was limited in time and would not continue beyond the point at which both his children had reached the age of majority.

• The majority has held that there is no “family life” within the meaning of Art. 8 between parents and adult children unless, additional elements of dependence exist. “Although the present case concerns a difference in treatment based on sex, which is one of the protected grounds expressly enumerated in Art. 14, it is worth noting the broader repercussions that may follow from the manner in which the reach of that provision is construed”.

• It was pointed out that the judgment addresses the question of the “ambit” of Art. 8 in conjunction with Art. 14; whereas the question of whether and how measures in the field of social welfare benefits might engage the application of Art. 8 taken alone i.e., the “scope”, remains outside the subject matter of this case.

• It was noted that the majority placed their focus on the constraints under which the applicant took his decisions to leave his job and to remain without employment throughout the period until his children became adults, and the ensuing difficulties he faced. Implicitly, such an approach suggests that the individual is entitled to rely on the collective of contributors to the welfare system. “While that may be a respectable ideological position to take, we would not agree that an international judicial body such as the Court may legitimately impose such an ideological approach on the domestic, democratically based institutions whose task it is to set up, maintain and finance the systems of social protection”.

• The dissenting Judges cautioned that matters of social welfare policies are at the heart of political and democratic processes at the domestic level; thus, it is obvious that the basic battlefields and corrective mechanisms in such matters must remain at the domestic levels of political democracy. “Such functions cannot be shifted to the courts. In particular, an international human rights court cannot legitimately place itself at the forefront of disputes relating to social welfare entitlements or turn itself into a final arbiter in the complex matters of income distribution and social rights”.

[Beeler v. Switzerland, Application no. 78630/12, decided on 11-10-2022]


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

rgnul
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RGNUL would like to express our appreciation to Surana & Surana International Attorneys for their continued collaboration with us. Having begun in 2018, a modest endeavor is moving forward with zest and intensity into another year of success. The Rajiv Gandhi National University of Law, Punjab, in collaboration with Surana & Surana-International Attorneys, Chennai, is pleased to announce the 5th Surana & Surana and RGNUL International Law Moot Court Competition, slated to begin on 29th September 2022.

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  • Prelims & Quarter-Finals: 30th September 2022

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Kenya High Court
Case BriefsForeign Courts

African Court on Human and People’s Rights (‘AFCHPR’): While deciding the instant matter concerning the eviction of a Kenyan indigenous minority ethnic group — the ‘Ogiek‘ community from the Mau Forest area, the AFCHPR directed the Republic of Kenya to take all necessary measures, [legislative, administrative or otherwise] to identify, and delimit, demarcate and title the Ogiek ancestral land and to grant collective title to such land in order to ensure, with legal certainty, the Ogiek’s use and enjoyment of the same. The respondent State was also directed to pay monetary compensation for the moral and material prejudices suffered by the Ogiek due to this dispute. It is to be noted that the present decision deals only with the reparations to the affected community.

Background of the case: The instant application was filed in respect of the Ogiek of the Mau Forest. Ogiek are an indigenous minority ethnic group in Kenya comprising of about 20,000 members, about 15,000 of whom inhabit the greater Mau Forest complex – a land mass of about 400,000 hectares straddling about seven administrative districts.

In October 2009, the Kenyan Government, through the Kenya Forestry Service, issued a 30 days’ eviction notice to the Ogiek and other settlers of the Mau Forest, demanding that they move out of the forest on the grounds that the forest constituted a reserved water catchment zone, and was in any event part and parcel of government land under Section 4 of the Government’s Land Act. As per the Government, this decision was taken by the State in order to conserve the forest which is a water catchment area.

Contentions and Prayer: It was contended by the applicant that the decision by the Kenyan Government will have far reaching implications on the political, social and economic survival of the Ogiek Community. It was also contended that Kenya violated Arts. 1, 2, 4, and 17 (2) and (3) of the African Charter on Human and People’s Rights1.

The Applicant prayed before the Court to-

  • Halt the eviction of the Ogiek from the East Mau Forest and refrain from harassing, intimidating, or interfering with the community’s traditional livelihoods.
  • Recognize the Ogiek’s historic land, and issue it with legal title that is preceded by consultative demarcation of the land by the Government and Ogiek Community, and for the Respondent to revise its laws to accommodate communal ownership of property.
  • Pay compensation to the community for all the loss they have suffered through the loss of their property, development, natural resources and also freedom to practice their religion and culture.

Per contra, Republic of Kenya contended that –

  • There is no basis for a claim for compensation for any violations before the year 1992 when it became party to the Charter. It further contends that “any claim for financial compensation can only be computed from 26-10-2009 and only in relation to the notice given to the Ogiek to vacate the South-western Mau Forest.
  • The State also submitted that the instant matter is a proper case for an amicable settlement in line with Art. 9 of the Protocol to African Charter on Human and People’s Rights2.

Observations: The Court comprising of Imani D. Aboud, (President); Blaise Tchikaya, (Vice-President), Rafaâ Ben Achour, Suzanne Mengue, M-Thérèse Mukamulisa, Tujilane R. Chizumila, Chafika Bensaoula, Stella I. Anukam, Dumisa B. Ntsebeza, Modibo Sacko, JJ., and Robert Eno (Registrar); recalled that in their decision dated 26-05-2017, the Court found that the Respondent State had violated the rights of the Ogiek under Arts. 1, 2, 8, 14, 17(2) and (3), 21 and 22 of the Charter. It was also decided that the Court would rule on reparations in a separate judgment and invited the Parties to file submissions on reparations.

Regarding the reparations, the Court made the following observations-

  • The Right to Reparations for the breach of human rights obligations is a fundamental principle of international law. It was also observed that it is a general principle of international law that the Applicant bears the burden of proof regarding the claim for reparations. “It is not enough for the Applicant to show that the Respondent State has violated a provision of the Charter, it is also necessary to prove the damage that the State is being required to indemnify(…) There must, therefore, be a causal link between the wrongful act that has been established and the alleged prejudice”. The Court also observed that reparations must cover both material and moral damages. The Court must also take into account not only a fair balance between the form of reparation and the nature of the violation, but also the expressed wishes of the victim.
  • Regarding material prejudice, it was observed that even though the Court acknowledges that compensation is an important means for effecting reparations, it is not enough for an Applicant to show that the Respondent-State has violated a provision of the Charter; it is also necessary to prove the damage that the State is being required to indemnify. “Applicant, therefore, bears the duty of proving the causal nexus between the violations and the damage suffered. Additionally, all material loss must be specifically proved”. The Court observed that it is incontrovertible that the Respondent State’s actions resulted in violation of Ogiek community’s rights, therefore the State bears the responsibility for rectifying the consequences of its wrongful acts.
  • It was also noted that in view of the length of time over which the violations occurred, the number of people affected by the violations, the Ogiek way of life and the general difficulties in attaching a monetary value to the loss of resources in the Mau Forest etc., it is difficult to make a precise and mathematically exact quantification of pecuniary loss. Therefore, the Court must exercise its discretion in equity to determine what amounts to fair compensation to be paid to the Ogiek.
  • Regarding moral prejudice, the Court noted the contentions made by the Applicant where it was highlighted that how the Ogiek have not been able to practice their religion including prayers and ceremonies intimately connected to the Mau Forest. It was also noted that Ogiek people have also been denied access to an integrated system of beliefs, values, norms, traditions and artefacts closely linked to the Mau Forest and have had their right to development violated due to the Respondent State’s failure to consult with or seek their consent about their shared cultural, economic, and social life within the Mau Forest.
  • The Court pointed out that that the Respondent State violated the Ogiek’s rights under Arts. 2, 8, 17(2) and (3) and Art. 22 of the Charter by failing to recognise the Ogiek as a distinct tribe like other groups; by making it impossible for the Ogiek to continue practicing their religious practices; by evicting the Ogiek from the Mau Forest area thereby restricting them from exercising their cultural activities and practice; and Art. 22 was violated due to the manner in which the Ogiek were evicted from the Mau Forest.
  • It was observed that while it is not possible to allocate a precise monetary value equivalent to the moral damage suffered by the Ogiek, nevertheless, the Court can award compensation that provides adequate reparation to the Ogiek. It was also noted that since the Respondent State violated the rights that are central to the very existence of Ogiek, therefore the State is under a duty to compensate the Ogiek.
  • The Court also observed that in the context of indigenous peoples’ claims to land, demarcation is the formal process of identifying the actual locations and boundaries of indigenous lands. The Court noted that in international law, granting indigenous people privileges such as mere access to land is inadequate to protect their rights to land. “The Court wishes to emphasise though that given the unique situation and way of life of indigenous people, it is important to conceptualise and understand the distinctive dimensions in which their rights to property like land can be manifested”.
  • The Court fervently reiterated that the Ogiek have right to the land that they have occupied and used over the years in the Mau Forest Complex. “However, in order to make the protection of the Ogiek’s right to land meaningful, there must be more than an abstract or juridical recognition of the right to property. It is for this reason that physical delineation, demarcation and titling is important”.

Conclusion/ Decision: With the afore-stated observations, the Court held that

  • The Respondent State to pay the sum of KES 57 850 000 free from any government tax, as compensation for the material prejudice suffered by the Ogiek; and a sum of KES 100 000 000, free from any government tax, as compensation for the moral prejudice suffered by the Ogiek.
  • The Respondent State should undertake an exercise of delimitation, demarcation and titling in order to protect the Ogiek’s right to property, which in this case revolves around their occupation, use and enjoyment of the Mau Forest Complex and its various resources. The demarcation process is to be undertaken in consultation with the Ogiek and/or their representatives.
  • the Respondent State must take all appropriate measures, within one 1 year, to guarantee full recognition of the Ogiek as an indigenous people of Kenya in an effective manner, including but not limited to according full recognition to the Ogiek language and Ogiek cultural and religious practices
  • Respondent State, to commence dialogue and consultations between the Ogiek and their representatives and the other concerned parties for purposes of reaching an agreement on whether or not they can be allowed to continue their operations by way of lease and/or royalty and benefit sharing with the Ogiek in line with all applicable laws.

[African Commission on Human and People’s Rights v. Republic of Kenya, APPLICATION No. 006/2012, decided on 23-06-2022]

*Sucheta Sarkar, Editorial Assistant has prepared this brief.


1. African Charter on Human and People’s Rights

2. Protocol to African Charter on Human and People’s Rights on establishment of an African Court on Human and People’s Rights

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of the United States: While deciding the instant matter related to the international custody of a child which further involved the reading and interpretation of the concerned provisions of the Hague Convention on the Civil Aspects of International Child Abduction; the full bench of the Court comprising of John Roberts, C.J., and Stephen Breyer, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, Samuel Alito, Elena Kagan, Sonia Sotomayor and Amy Coney Barret, JJ., in a unanimous decision, held that, once a court has found that returning to a foreign country would expose a child to a grave risk of harm, then in such cases, a court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country.   

 

Facts and Legal Trajectory: Narkis Golan [‘Petitioner’], a citizen of USA, married an Italian citizen, Issaco Saada [respondent] in Italy. A son was born to them in 2016 and in 2018 the petitioner flew with his son to the United States to attend a wedding. However, instead of returning to Italy, the petitioner moved into a domestic violence shelter with his son. The respondent filed a petition with the U. S. District Court for the Eastern District of New York, seeking an order of returning the child to Italy pursuant to the Hague Convention.  

 

It was concluded by the District Court that given the evidence of the respondent being abusive towards the petitioner and the resultant negative impact on the son; it is therefore a grave risk to send the child back to Italy. However, the Court ordered that the child be returned to Italy after it “examined the full range of options that might make possible the safe return of a child” and concluding that ‘ameliorative measures’ could reduce the risk to looming on the son sufficient enough to require his return.  

 

The Second Circuit vacated the aforementioned order finding such ‘ameliorative measures’ as insufficient and remanded the matter to the District Court to consider whether such measures, in fact, existed. After another examination over nine months, the District Court identified new ameliorative measures and again ordered the child’s return; and this time the Second Circuit affirmed. 

 

The Hague Convention on the Civil Aspects of International Child Abduction requires the judicial or administrative authority of a Contracting State to order a child returned to the child’s country of habitual residence if the authority finds that the child has been wrongfully removed to or retained in the Contracting State.  

The authority “is not bound to order the return of the child,” however, if the authority finds that return would expose the child to a “grave risk” of “physical or psychological harm or otherwise place the child in an intolerable situation.” 

The International Child Abduction Remedies Act (ICARA) implements the Convention in the United States, granting federal and state courts jurisdiction over Convention actions and directing those courts to decide cases in accordance with the Convention. 

 

Observations: Sonia Sotomayor, J., delivered the unanimous opinion of the Court in the matter. Some of the significant observations are as follows-  

  • Noting that “interpretation of a Treaty like the interpretation of a statute, begins with its text”, the Court observed that Art. 13(b) of the Convention leaves a court with the discretion to grant or deny return, providing that a court “is not bound to order the return of the child” if it finds that the party opposing return has established that return would expose the child to a “grave risk” of physical or psychological harm. Nothing in the Convention’s text either forbids or requires consideration of ameliorative measures in exercising this discretion. 
  • Determining whether a grave risk of harm exists necessarily requires considering whether any ameliorative measures are available- it was observed that existence of grave risk and availability of ameliorative measures are two separate questions and a court may find it appropriate to consider both questions sat once. However, the Convention does not impose a categorical requirement on a court to consider any or all ameliorative measures before denying return based on a grave-risk determination. 
  • As per the Convention and the ICARA, the courts also have discretion to determine that whether consideration of ameliorative measures could ensure the child’s safe return. It was noted by the Full Bench that the Second Circuit laid down a contrary rule which imposed a categorical requirement that courts consider all possible ameliorative measures in exercising discretion under the Convention, regardless of whether such consideration is consistent with the Convention’s objectives.  
  • It was further observed by the Court that Second Circuit’s interpretation of the Convention “improperly elevated the child’s return above the Convention’s other objectives”. The courts must remain conscious of all the Convention’s objectives and requirements, which constrain their discretion to consider ameliorative measures.  
  • As per the Convention, any consideration of ameliorative measure must prioritize a child’s physical and psychological safety; and that the consideration of ameliorative measures must accord with the Convention’s requirement that courts must act expeditiously in proceedings for the return of children. “A court therefore reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings”.    
  • Finally, the Bench observed that the District Court made the finding of a great risk upon the child’s return; however, it did not have the opportunity to inquire whether to order or deny return under the correct legal standard.  

Decision: Vacating the order of the Second Circuit, the Bench remanded the case to the District Court directing them to determine whether the measures considered, are adequate to order the return of the petitioner’s son, in light of the District Court’s factual findings concerning the grave risk, while bearing in mind that “the Convention sets as a primary goal the safety of the child”.    

[Golan v. Saada, 2022 SCC OnLine US SC 7, decided on 15-06-2022] 


*Sucheta Sarkar, Editorial Assistant has reported this brief. 

 

Interviews

Adv. Sindhura Polepalli is a Maritime Legal Consultant at the Directorate General of Shipping (Ministry of Ports, Shipping and Waterways, Government of India). Her work includes legal consultancy, legislation drafting and international cooperation in the maritime field. In her present capacity, she is a member of the National Committee, which is tasked with reforming India’s Maritime Acts/Laws/Regulations/Policy for meeting Maritime India Vision 2030 (released by Hon’ble PM Narendra Modi on 2-3-2021).

 

Previously, she served the legal office of the International Tribunal for the Law of the Sea (ITLOS), Hamburg. She is a law graduate from the Government Law College, Mumbai, and has earned her LLM with distinction in International Maritime Law from IMO International Maritime Law Institute (IMO-IMLI), Malta, where she was awarded the Maltese Government Prize for Best Performance in the Law of the Sea. She also holds diplomas from Rhodes Academy of Oceans Law and Policy (Greece) and the Yeosu Academy of the Law of the Sea (Republic of Korea).

 

She has been interviewed by Achintaya Soni, EBC/SCC Online Student Ambassador who is currently pursuing law from UILS, Panjab University.

 

  1. What drew your curiosity to the field of maritime law and how did you choose this field of expertise?

I am a first generation lawyer, which means I was not already exposed to the varied areas of legal expertise, especially the niche ones such as maritime law. I realised this all the more strongly as a law student, and decided to explore the different legal areas of practice through internships, participation in moot court and Model United Nations competitions, etc. To briefly explain, I had the privilege of interning with Justice S.J. Kathawalla of the Bombay High Court. Soon I qualified to represent my law college at certain national moot court competitions, among which my team and I decided to pick the competition that was centred around international law of the sea. Through our participation, we stood meritorious PAN India, and it further motivated me to look for prospects in this subject. Subsequently, I was accepted to various short courses in maritime law, such as the GNLU International Maritime Academy, the Yeosu Academy of the Law of the Sea (Republic of Korea) and the Rhodes Academy of Oceans Law and Policy (Greece), as well as an internship with Bose & Mitra & Co. These experiences built my deep interest for seeking advanced education in maritime law and further professional endeavours in this subject.

  1. Can you comment on how law schools take maritime law as a subject? Is it accorded the importance it deserves?

Maritime law falls within the wider umbrella of international law—a subject which is wide in itself. Further, maritime law has both public (law of the sea) and private (shipping law) elements.

 

While I pursued law, the subject of law of the sea was barely a few pages of public international law. Also, conflict of laws/private international law was an optional, and even within which the interaction with the concepts applicable to shipping law was bare minimal. Hence, it can be said that maritime law was barely included in the law school syllabus. In my opinion, this may be because maritime law is a niche subject. However, other niche subjects such as taxation law and intellectual property rights have been introduced as optional subjects in the LLB curriculum. Hence, one may argue that such should also be the case with maritime law, which is at the centre of international trade and national security and interests, and which has proved to be indispensable even during the pandemic.

  1. How was your experience at the IMO International Maritime Law Institute (IMO-IMLI), Malta? Would you recommend interested students to consider pursuing advanced maritime education at IMO-IMLI? Does India have such opportunities for advanced maritime education?

IMO-IMLI offers an in-depth, comprehensive and the best global programme in international maritime law, and this is especially evidenced through the special recognition of its work by the International Maritime Organisation. The institute is committed to the sustainable development goals and contributes to the empowerment of women in the maritime sector by reserving 50% of the places in its programmes for deserving female candidates. My experience at IMO-IMLI was no different and the institute assisted me in securing the prestigious Nippon Foundation scholarship.

 

Through my experience, I must say that IMO-IMLI is not only promising because of its world class teaching under the tutelage of renowned maritime experts, but it is also an exceptional avenue to share class with senior government officers, lawyers and policy experts of multiple nationalities. As a result, IMO-IMLI broadens the horizon of learnings and perspectives in maritime law as well as with respect to multinational cultures, traditions and experiences.

 

As to the opportunities in India, an LLM in maritime law may be pursued at Indian Maritime University, Gujarat Maritime University, Cochin University of Science and Technology, among others.

 

  1. How was your experience at the ITLOS, Hamburg? What differentiates ITLOS from the International Court of Justice?

Having earned my LLM in International Maritime Law from IMO-IMLI, I was very interested in understanding the practical application of the concepts I had pursued academically in the field of the law of the sea and I had the privilege of being accepted to the ITLOS internship programme.

 

Through my time at ITLOS, I had the prestigious opportunity to witness the making of international jurisprudence at ITLOS, particularly with regard to provisional measures, through the M/T “San Padre Pio” case (Switzerland/Nigeria),  the case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation) and the M/V “Norstar” case (Panama v. Italy).

 

I must also highlight that during this time at ITLOS I was included among the guest invitees to attend the proceedings at the International Court of Justice (ICJ) concerning the case (Ukraine v. Russian Federation). This period offered an extensive and realistic understanding of the concepts of the law of the sea as well as the procedures concerning peaceful settlement of international disputes.

 

With respect to the ITLOS and the ICJ, they are different in the way that the former is an independent international judicial body established under United Nations Convention on the Law of the Sea (UNCLOS), while the latter is the principal judicial organ of the United Nations as well as one of the dispute settlement mechanisms under UNCLOS. Accordingly, there are frequent cases of overlap among the subjects over which ICJ and ITLOS exercise jurisdiction. However, unlike the ICJ, the Judges of ITLOS are required to have recognised competence in the specialised field of the law of the sea. Besides, unlike ITLOS, compliance with the judgments of the ICJ is ensured through recourse to the United Nations Security Council.

 

For India, it may be noted that recourse to the ICJ for maritime disputes is largely ruled out for now because of India’s express declaration in this regard. No such declaration has been made by India concerning the ITLOS.

 

  1. What is your scope of work as a Maritime Consultant at the Directorate General of Shipping? What kind of work do you deal on a day-to-day basis?

The Directorate General of Shipping (Ministry of Ports, Shipping and Waterways, Government of India) is the Maritime Administration of India. As the Maritime Legal Consultant to the Directorate, my work includes legal consultancy, legislation drafting and international cooperation in the maritime field. These responsibilities are especially evidenced by the Maritime India Vision 2030, which was released by the Prime Minister of India this year, where I have been honoured to serve as the member of India’s National Committee tasked with reforming India’s maritime legal architecture to implement applicable international law and generally accepted international rules and standards.

 

This means I assist the Directorate in developing and implementing national maritime legislation and rendering legal advice on national and international law, treaties and instruments, particularly affecting the maritime field.  The scope of my work includes an integrated approach to international law in which the Indian legal framework interfaces with international and regional organisations, such as the International Labour Organisation (ILO), International Maritime Organisation (IMO), Food and Agriculture Organisation (FAO), World Trade Organisation (WTO), the United Nations Commission on International Trade Law (UNCITRAL), the European Union (EU) and Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC).

 

My work, for instance, often deals with India’s representation at the IMO, including India’s election to the IMO Council as well as in the formulation and drafting of India’s position on matters of maritime concern, such as in cases of abandonment of seafarers. Also, I assist in the ongoing discussions at the UNCITRAL concerning the draft Convention on the Judicial Sale of Ships. I continue to contribute to international negotiations and drafting of agreements with the BIMSTEC countries, EU and other countries on matters such as coastal shipping, training and employment of seafarers, ship recycling and ship building. Also, I have contributed to the drafting of the recent Recycling of Ships Rules, 2021, and the Merchant Shipping (Maritime Labour) Amendment Rules, 2021, and I am actively involved in the drafting of the proposed Merchant Shipping Bill, 2020 and Coastal Shipping Bill, 2020. Frequently, I render legal opinion on questions of law posed by maritime cases or incidents.

  1. Today, India stands among the top five ship recycling countries of the world and this practice of ship recycling contributes USD 1.3 billion to India’s GDP. However, the process also involves hazardous material. So, to what extent, do the recent ship recycling laws in India ensure environment protection and the safety and welfare of the workers working in the industry?

The process of ship recycling is hazardous since end-of-life vessels contain toxic materials such as asbestos, whose release into the local environment may threaten the health and well-being of the personnel engaged in ship recycling, local communities, wildlife, etc. However, the same process generates employment, skill and development, and enables reuse of valuable materials, which in turn contributes towards sustaining a circular economy. Therefore, the Supreme Court (Research Foundation for Science Technology National Resource Policy v. Union of India[1]) has also clarified that, rather than the discontinuance of ship recycling activities, the need is for their strict and proper regulation.

 

Realising this need, India became a party to the Hong Kong Convention[2], in 2019, and subsequently, enacted the Recycling of Ships Act, 2019, and its Rules in 2021. The Hong Kong Convention sets global standards for safe and environmentally sound ship recycling, by covering the design, construction, operation and maintenance of ships and requiring an inventory of all hazardous materials on board. Also, ship recycling facilities are required to provide a “ship recycling plan”, specifying how each ship will be recycled, based on its particular characteristics and its inventory of hazardous materials.

 

The current ship recycling laws of India substantially incorporate the provisions of the Hong Kong Convention.

 

Under the Recycling of Ships Act, 2019, the Director General of Shipping, Government of India, has been designated as the national authority to administer, supervise and monitor all activities relating to ship recycling. Also, the provisions cover the detailed procedure to be followed by ship recyclers, ship owners and ships to meet the purpose of environmentally sound recycling of ships, workers safety, training and insurance and emergency preparedness and response. This includes the process for obtaining certificates of inventory of hazardous materials and ready for recycling; authorisation of ship recycling facility; preparation of ship recycling facility management plan and ship recycling plan; inspection of a ship recycling facility and ships; and certain reporting requirements. Notably, contravention of these provisions entails high penalties or even imprisonment or both, as the case may be.

  1. India is currently in its progressing stage on amending maritime laws and also revamping the entire legislations such as the recent Merchant Shipping Bill. So what is the necessity and the key elements involved in the process?

Yes, India is looking to revamp and upgrade its maritime legal framework to meet the contemporary and applicable international law and standards. In fact, the need to strengthen the current policy and institutional framework has been clearly emphasised in the Maritime India Vision 2030 (MIV 2030), which suggests amendments to existing shipping/maritime legislation, such the Merchant Shipping Act, 1958, Light House Act, 1927, Indian Ports Act, 1908, etc. A national committee has been tasked for this purpose under the MIV 2030.

 

To briefly point a few, public consultations have revealed the need for a new merchant shipping legislation to provide, among other things, a holistic regulation to all kinds of ships/vessels, a single point ship registration regime, reduce compliance burden for Indian vessels, increase the quality and quantity of Indian tonnage, incorporate enhanced provisions for protection and preservation of marine environment and coastline interests, seamlessly integrate coastal and inland shipping, and enhance ease of doing business. These measures are largely aimed at boosting the capacity of even small entrepreneurs to participate in the maritime sector, which will ultimately lead towards “AatmaNirbhar” or self-reliant India.

  1. Please apprise our readers about the Maritime India Summit held in March 2021 and the Maritime India Vision 2030. Please also explain your role towards the same.

Maritime India Summit 2021 (MIS 2021) was a flagship initiative of the Ministry of Ports, Shipping and Waterways, Government of India, organised in the month of March 2021. The theme of this event was to explore the potential business opportunities in the Indian maritime sector and making AatmaNirbhar India. This 3-day summit and exhibition event was inaugurated by Hon’ble Prime Minister Narendra Modi.

 

The MIS 2021 was a platform aimed at attracting huge investments and creating business and employment opportunities in the maritime sector. The Directorate organised the road show and memorandum of understanding (MoU) signing ceremony as a prelude to the MIS 2021. To this end, I had the privilege of contributing to the process of signing of various national and international MoUs, which ultimately are aimed to support the national cause of boosting India’s maritime business and employment (nationally and internationally) through an investment worth over Rs 20,000 crores. It is expected that these MoUs will be generating employment opportunities for around 50,000 seafarers in five years.

 

The MIS 2021 also witnessed the release of the “MIV 2030”, and “Sagar-Manthan”: Mercantile Maritime Domain Awareness Centre (MM-DAC), which is an information system for enhancing maritime safety, search and rescue capabilities, security and marine environment protection.

 

As to the MIV 2030, it encapsulates India’s decade long blueprint to accelerate India’s maritime growth. It analyses current and future challenges, drives innovation by utilising latest technology, creates time-bound action plan, understands current standing and adopts best-in-class practices, addresses capability building and human resources and attempts to achieve “waste to wealth”. For this purpose, it identifies 14 thrust areas to meet 10 key maritime themes for India. These themes revolve around port infrastructure, ship building, repair and recycling, movement in inland waterways, cruise tourism, India’s international cooperation, safe sustainable and green shipping, maritime training, etc. In this direction, I have the prestigious opportunity as one of the National Committee members to work with the Directorate and various experts and luminaries towards reforming India’s maritime legal architecture to meet MIV 2030.

  1. Does your present professional capacity lead to legal interaction with maritime cases and casualties, such as the recent “New Diamond Ship case” or casualties resulting from cyclone Tauktae, or those consequent to the impact of Covid-19? If so, kindly give details of the same.

Yes, I have interacted with certain legal issues that arise in cases of maritime casualties, as well as those consequent to Covid-19. For instance, the Directorate was involved in the firefighting/emergency operations in the case of the MT New Diamond Ship case, which caught fire off the Sri Lankan coast last year. Hence, my role relates to the legal issues arising in such cases of salvage or emergency operations undertaken. As to cases arising consequent to cyclones that impact ships and life at sea, I examine the legal obligations of the stakeholders that interact with the domain of the Directorate, where so required. As to legal issues arising consequent to Covid-19, my role, among other things, relates to matters of force majeure or the application/relevance/implication of various executive orders to stakeholders, such as shipping lines or seafarers.

  1. Please apprise our readers about India’s international cooperation in the maritime sector, such as with reference to the International Maritime Organisation?

India has been active with its international cooperation, particularly in the maritime sector. For instance, India has been one of the earliest members of the IMO, having ratified its convention and joined it as a member State, in the year 1959. India actively participates in the meetings of the committees and sub-committees of the IMO. India has also been an active contributor to various international/UN bodies, such as the ILO, International Mobile Satellite Organisation, International Oil Pollution Compensation Funds, Contact Group on Piracy off the Coast of Somalia (CGPCS) and United Nations Conference on Trade and Development (UNCTAD).

 

So far, India is party to 35 of the international instruments adopted by the IMO and 1 by the ILO. Also, India has implemented all major safety, environmental and labour conventions of the IMO and ILO. As to the IMO, India has had the privilege of continuously representing in category (b) of the Council of the IMO ever since its inception, except for one term between 1983 and 1984. Presently, India has been elected as a member of category (b) of the Council of the IMO, representing nations with the largest in international seaborne trade.

  1. Is there any piece of advice that you would like to give to the readers who might want to follow your steps?

In my opinion, everyone has their own journey to recognise what suits their personal and professional interests. Personally, I have always been open to recognise that there may be many things which I may not be aware of, and yet I have been extremely keen on trying to inculcate awareness of various subjects. In this process, I realised that I developed likeness for maritime law. For instance, I was unaware of admiralty or maritime law, until I interned or participated in extracurricular and co-curricular activities. This is evidence that open-mindedness to attempt and explore helps, which may prove beneficial to others as well.

[1](2005) 10 SCC 510, para 43.

[2]Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009.

Case BriefsForeign Courts

Federal Court of Australia: While deciding the instant appeal dealing with interpretational technicalities associated with international arbitration, the Court clarified the principles and distinctions between recognition and enforcement of arbitral awards vis-à-vis the ICSID Convention. The Court also clarified the legal position over the question that whether the ICSID Convention excludes any claim for foreign state immunity in proceedings for the recognition and enforcement of an award.

Facts: The dispute between the parties is related to the investment by the Respondents of EUR139,500,000 into solar power generation projects within the territory of Spain. The respondents were encouraged to do so by a subsidy program put in place by Spain, which was subsequently withdrawn. The Respondents alleged that the withdrawal of the subsidy program was a contravention of the Energy Charter Treaty (ECT). Pursuant to Article 26(3)(a) of the ECT, Spain agreed that it gave its unconditional consent to the submission of the dispute to international arbitration and, by the virtue of Article 26(4)(a) it agreed to an international arbitration under the auspices of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). The arbitrators eventually awarded the Respondents EUR101,000,000 with interest. The respondents applied to the Federal Court at first instance for an order that Spain pay it that amount with interest. Spain filed a notice contesting the jurisdiction of the Federal Court of Australia on the basis that it was immune from suit as a foreign state under S. 9 of the Foreign States Immunities Act 1985.

Issues: The following key issues were involved in the dispute-

  • Whether the ICSID Convention excludes any claim for foreign state immunity in proceedings for the recognition and enforcement of an award.
  • Meaning of recognition and enforcement in Art 54 and execution in Art 55 of ICSID Convention.
  • Whether Spain’s accession to the ICSID Convention constitutes submission to the jurisdiction of the Federal Court.

Contentions: Spain put forth the following arguments-

  • The word ‘execution’ in Article 55 must be understood as including a proceeding to ‘enforce’ an award (the reasons for this are, to an extent, complex and discussion of this issue may be postponed for now).
  • Even if ‘execution’ in Articles 54(3) and  55 does not mean ‘enforcement’, nevertheless, the question of the proper construction of Art 55 can only be definitively resolved by the International Court of Justice. Until then it is arguable Spain’s accession to Articles 54 and 55 cannot represent its clear agreement to submit to jurisdiction of Federal Court.

Relevant statutes: The case revolves around the interpretation of Articles 54 and 55 of the ICSID Convention. Article 54 deals with the recognition and enforcement of the pecuniary obligations imposed by the award. Execution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought. Article 55 states that –“Nothing in Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution”.

The other statutory provisions that were highlighted in the case were Sections 3, 9 and 10 of the Foreign States Immunity Act, 1985. The provisions respectively deal with interpretation of an agreement (including international treaties and agreement); immunity of a foreign state from the jurisdiction of the courts of Australia; and, instances wherein a foreign state has to submit to the jurisdiction of the Australian law and courts.

Observations: The Court noted that, “The principal difficulty at the centre of the debate is linguistic or semantic” – (Allsop, CJ.,). With the parties to the dispute seeking lucidity on the aforementioned provisions, the Court examined them and made the following observations, with Perram, J., elucidating the key aspects of the provisions in question-

Regarding Articles 54 and 55

  • It was noted that ‘recognition’, ‘enforcement’ and ‘execution’ are concepts predating and existing outside of the ICSID Convention. Broadly “recognition refers to the formal confirmation by a municipal court that an arbitral award is authentic and has legal consequences under municipal law. Enforcement refers to the process by which a successful party seeks the municipal court’s assistance in ensuring compliance with the award (as recognised) and obtaining the redress to which it is entitled. Execution refers to the formal process by which enforcement is carried out”.
  • Since the issue at hand orbits around ICSID provisions, therefore the concepts must be interpreted accordingly. Perram, J., noted that under Art. 54 the Contracting States are required to recognise an award. It also permits a party having the benefit of an award to apply to a competent court for its recognition. It also permits a party to apply for the enforcement of the award by application to a competent court. “As such the Article explicitly contemplates two distinct applications to the competent court (or other authority). If enforcement in Art 54(2) were synonymous with recognition this distinction would appear to be pointless. The Article therefore recognises the distinction between the two applications and requires applications for both to be made to the ‘competent court’”.
  • The Judge further pointed out that Article 54(1) imposes two obligations on a Contracting State, first, recognition of the award as binding; and, secondly, (implicitly in relation to an award which has been recognised), enforcement of the pecuniary obligations imposed by the award ‘as if’ it were a final judgment of a domestic court. Article 54 does not contemplate the enforcement of awards which have not been recognised.
  •  “Article 55 does not refer to recognition and there can be no warrant for reading it as if it did”. Interpreting the Article along with the preceding provision (Article 54), the Court stated that the combined effect of Article 54 is that a Contracting State is required to recognise an award when a certified copy of the award is furnished to the competent court (or other authority).
  • If ‘execution’ were construed to include ‘recognition’ in Article 55 there could be no circumstance in which the recognition application expressly contemplated by Art 54(2) could ever be made against a Contracting State. This would render the recognition procedure in Art 54(2) perpetually unavailable against a Contracting State and would have the consequence that the obligation to recognise an award in Art 54(1) as binding could never be engaged. “It may be noted that the fact that recognition is wholly distinct from enforcement (including, if necessary, execution) is also reflected in the heading to Section 6: ‘Recognition and Enforcement of the Award’ where Art 54 and Art 55 are contained. For those reasons, Art 55 does not apply to recognition proceedings and is unavailable to modify the meaning of Art 54(1) and (2) in relation to such proceedings”.

Regarding Spain’s submission to Federal Court’s Jurisdiction: Deliberating upon the question that whether Article 54(1) and (2) constitute Spain’s agreement to submit to the jurisdiction of the Federal Court in a recognition proceeding, the Court answered in affirmative. Article 54(2) is in terms Spain’s agreement with Australia that the Respondents may apply to a competent court for recognition and the Federal Court has been designated as a competent court for the purposes of Article 54. Spain has therefore agreed to submit to the jurisdiction of this Court in relation to a recognition proceeding. Article 55 can have no impact on that conclusion because it has no application to recognition proceedings.

Making an interesting observation, the Court pointed out that the ICSID Convention had been done in English, Spanish and French. Article 33 of the Vienna Convention provides that where ‘a treaty has been authenticated in two or more languages, the text is equally authoritative in each language’; where a difference in meaning emerges which cannot otherwise be resolved by ordinary principles of interpretation ‘the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.’ Allsop, C.J., noted that the relationship between recognition and enforcement can be seen by the wording of the ICSID Convention itself. “Whether the French and Spanish languages have a penumbra or range of meaning in the words exécution and ejecutar to encompass a non-execution procedure of enforcement would be a matter of evidence. I am unconvinced that the question of resolution of the meaning of the English, French and Spanish texts can be done in ignorance of the content by way of evidence of two of the three languages”.[Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2021] FCAFC 3, decided on 01-02-2021]


Sucheta Sarkar, Editorial Assistant has put this story together.

COVID 19Op EdsOP. ED.

The emergence, subsequent inter-continental spread and the inevitability of the ensuring mounting death toll across almost every region of this planet has exposed the spectacular lack of preparedness of many Governments in facing the COVID-19 pandemic. Notably, up until the middle of January 2020, the novel Coronavirus was not even considered sophisticated enough for human to human transmission and yet by the end of February 2020 continental Europe had been ravaged. In the consequent incursion into and subjugation of the United States of America (USA), the novel coronavirus achieved that which no invading army ever could.

As a direct result of the same and almost without exception, the world, led by America, clamoured to fix culpability upon Communist China. However, it need not be reiterated that no pre-eminent global power in the post-WW2 decades has ever of its own accord ever submitted to the jurisdiction of international law. The western nations, short of bilateral or multilateral reprisals (the validity and legality of which under international law would be questionable at the very least), are therefore wholly bereft of an effective means of bringing the ‘guilty’ to book. Regardless, remedial inadequacy has not deterred those seeking reprisal against the People’s Republic of China (PRC), from filing suits and petitions against PRC’s communist leadership, its armed forces as well as the Institute of Virology situated at Wuhan. These however are nothing but, as the Solicitor General so deftly put it in another context, ‘self-employment generating petitions’.

Succinctly stated, the concept of ‘State responsibility’ vis-à-vis international law arises primarily under three scenarios; (1) breach of obligations arising out of treaties and/or contracts, and (2) international delinquencies. There’s a third area of study i.e. international criminal law, however, that pertains to individual criminal liability and has been discussed separately below. It must also be borne out that though the conceptualisation of ‘sovereignty’ has undergone a transformation in the post-WW2 period of the 20th century, yet devoid of any supranational agency, ‘State responsibility’ in consonance with international law must be tempered by the sovereign autonomy of a nation State.

Insofar as the COVID-19 pandemic is concerned, there evidently does not exist any treaty obligation governing the manner of transaction between the world and the PRC. Thus the discussion surrounding ‘State responsibility’ must revolve around the idea of international delinquency whereby culpability can be attributed to a State in connection with its non-contractual international law obligations. Quite interestingly, in most cases of such nature, responsibility arises as a result of injury suffered by the citizens abroad i.e. aliens in the host nation. However, a key constituent of ‘international delinquency’ is ‘imputability’. Consonantly, if a certain State-action resulting in injury to an alien cannot be directly attributed to an agency of the host State (for instance China in the current scenario) then the same may not amount to fixation of responsibility unto the said host. Naturally thus, no act of a private citizen resulting in injurious consequences for an alien can be termed an ‘international delinquency’.

If one is to consider the present scenario wherein claims against the PRC are sought to be brought forth, no case of international delinquency is made out short of the international community being able to conclusively prove that the Communist Party of China in cohorts with its armed forces and/or other agencies of the State sought to inflict the alleged harm and injury to the global population. It is further imperative to take note of the fact that ‘force majeure/fortuitous event’ presents itself as a complete defence to any such action of State responsibility.

In addition to the above enunciation of State responsibility, it is notably that the clamour to fix criminal liability under international law vis-à-vis the top leadership of the Communist Party of China, makes it crucial that the phrase ‘crimes against humanity’ is understood in terms of its specific legality vide the Rome Statute for International Criminal Court[1]. The Rome Statute under Article 7 explicitly defines ‘crimes against humanity’ as being in the nature of murder, extermination, enslavement, deportation, torture, rape, etc. coupled with an element of systemic attack against any civilian population[2].

Additionally, although the International Criminal Court (ICC) has the jurisdiction to try everyone equally regardless of any official position held thereof, such jurisdiction can only arise by way of (1) the accused person being a national/citizen of a State party to the Rome Statute, (2) the alleged crime of most serious concern to the international community having been committed on the territory of a State party to the ICC, and (3) referral of a matter from the United Nations Security Council (UNSC).

In that regard, fastening of criminal liability unto any Chinese State official is bleak to say the least for not only is PRC a veto-wielding member of the UNSC, it not a State party to the Rome Statute and thus does not recognise the jurisdiction of the ICC. Furthermore, as would become manifest from the definition above, there exists no intelligible and coherent evidence as to satisfy the threshold of international criminal law.

In conclusion, it becomes important to analyse the complaint forwarded before the United National Human Rights Council, Geneva (UNHRC) by the International Council of Jurists. Regardless of the allegations made thereby, it must be understood that though the UNHRC has a very wide ambit and scope to entertains such complaints, it has one of the weakest mechanisms under international law to provide any remedy. No recommendation of the UNHRC has any binding force upon the member States. At the most, a mere cognizance of the matter can be taken by the Human Rights Council and recommendations forwarded thereof to the governing executive of the d State concerned.

An inward looking world as at present will surely find a way to penalise the commissions and omissions of the PRC in due time. Rest assured it will not be by means of the numerous yet woefully inadequate international law remedial instruments at the disposal of the international res publica.


*The Author is a practising Advocate in Delhi

[1] The Rome Statute of the International Criminal Court was adopted on 17th July 1998 at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court and it came into force on 1st July 2002 upon being ratified by at least 60 signatory nations.

[2] ‘Crimes against Humanity’; Article 7 of Rome Statute

Conference/Seminars/LecturesLaw School News

The International Law Society, KIIT School of Law is organized the 4th KIIT National Conference on International Law from 12th January to 13th January 2019 to encourage discussion and deliberation on essential and contemporary issues pertaining to public and private international law. The objective of this conference is to foster the interest and explore the contemporary areas in public international law. Inaugural Ceremony commenced on 12th January, 2019 from 11 AM. The conference comprised of two events. Firstly, the symposium on International Law and secondly the Treaty Negotiation Competition.  The symposium consisted of three themes, namely, International Commercial Arbitration, International Human Rights and Terrorism Law & International Trade and Investment  Law. The Treaty Negotiation Competition which aims to spread awareness about the importance of the treaty-making process among the participants. The Competition helps in honing the negotiation skills of the participants at international level, given the fact that they will be representing a nation on the table. The format of the Treaty Negotiation Competition was based on the workings of various bodies and agencies of United Nations as well as other independent organizations which  cater  to  the  treaty  negotiation  process  in  various  global  spheres.  The key objective of this Competition is to inculcate in participants the sense of innovation along with negotiation skills which are essential in a lawyer. Students from various universities participated in the event.

List of Resource Persons:

  1. (Dr.) Srikrishna Deva Rao, Vice Chancellor of National Law University, Orissa.
  2. Suruchi Suri, Partner of Suri and Co.
  • S.G.Srijeeth, Vice Dean and Executive Director Centre for International studies, Jindal Global University .
  1. Ananya Chakraborty, Assistant Professor at National Law University, Orissa.
  2. AlipakBannerjee, Leader International Litigation & Dispute Resolution Practice, Nishith Desai Associates.
  3. AnubhabSarkar, Co-Founder of Triumvir Law

Winners:

  1. Paper Presentation:
  2. Best Paper- Ms.KanikaLahoti, Christ University.
  3. Second Best Paper- Mr.ShubhamBiswal, Tami Nadu National Law University.

  1. Treaty Negotiation Competition:
  2. Winners- Mr. AnindyaBebartaPattnaik ,Mr. Parthsarthi Srivastava, National Law University Odisha, Cuttack.
  3. Runners Up- Mr. Aniket Pandey, Mr. VivaswanDeekshit, Maharashtra National Law University, Nagpur
  • Best Framework Agreement- Mr. Anupam Pandey, Mr. Samrat Banerjee, Hidayatullah National Law University, Raipur.

Organising Team-

  • Pooja Sah, President of International Law Society
  • PurbodayPatitunda, Vice- President, International Law Society
  • Mitul Dutta, Faculty Advisor of International Law Society

AchievementsLaw School News

Ms Kanika Lahoti of III BBA LLB (Hons.) of School of Law, CHRIST wins the Best Paper Award at the recently held National Conference on International Law at KIIT University, Odisha on 13 January 2019.