CHINA’S NATIONAL SECURITY LAW AND WHAT IT MAY MEAN FOR THE INTERNATIONAL RULE OF LAW

Ekta Garg, a 3rd year student of Army Institute of Law, Mohali discusses China’s National Security Law and it’s implications on International Rule of Law

Pro-democracy activists in Hong Kong and Chinese Authorities have locked horns several times since the past few years over the alleged violations of the rights guaranteed to the Hong Kong Special Administrative Region (HKSAR).[1] Hong Kong, widely considered as Asia’s economic and financial powerhouse, owes its status to the ‘one country, two systems’ principle. However, the pro-democracy movement in Hong Kong received a death blow after the Chinese legislature passed the highly controversial National Security Law in the region. This article aims to analyse the legal standing of the legislation under the Hong Kong’s Basic Law and the Sino-British Joint Declaration in brevity, and why the act of passing such legislation is a blow at China’s commitment to International Rule of Law.

Hong Kong’s political history at the root of unrest?

Hong Kong became a British colony in 1842, and with the conclusion of the Treaty of 1898, the New Territories and surrounding islands region of Hong Kong was leased to the British for a period of 99 years ending July 1997. The years following the end of World War II saw the city turning into a reliable business hub attracting companies who feared communist mainland China. In order to preserve the economic prestige of the city, the Sino-British Joint Declaration was signed, establishing the ‘one country, two systems’ principle, thus ensuring Hong Kong’s capitalist system and other rights to the people of Hong Kong, for a period of 50 years following the end of the treaty in 1997. Since then, the city follows the Basic Law, the mini-constitution governing Hong Kong.[2] The Basic Law, since the handover, required the city’s legislature to enact a national security law on its own, but its failure does so, coupled with the escalated pro-democracy protests of last year, appears to be the reason behind such undue haste behind the move by the National People’s Congress.

The National Security Law

Wang Chen, Vice Chairman of the National People’s Congress Standing Committee, while speaking at the opening of the Annual Session of the NPC- China’s Parliament, stated that the proposed legislation seeks to criminalise the following acts[3]:

  • Secession
  • Subversion
  • Foreign Interference in Hong Kong activities.
  • Terrorism

He also stated that to achieve the proposed objectives, the new law would provide for the establishment of national security organisations in Hong Kong in order to “improve the enforcement mechanisms for safeguarding national security.”[4] The legislation would surpass the Hong Kong Legislature, and not only imperil the preferential trade status enjoyed by the region but also threaten the civil liberties of the Hong Kong citizens. In the wake of the escalated pro-democracy protests last year, and failed attempt at pushing the extradition bill, such an unprecedented move insinuates at Beijing’s aim to throttle the movement once and for all.

Position under the Basic Law

Article 23 of the Basic Law, the territory’s mini-constitution, specifically states that laws prohibiting treason, secession, foreign political organizations conducting political activities in the region, etc. shall be enacted by the Hong Kong Special Administrative Region “on its own.” After Hong Kong Legislature’s crushed attempt to bring the law in 2003.[5] Beijing decided to take the matter in its own hands. But, is it justified under the law? The answer is No. Article 23 not only imposes an obligation on the city’s legislature to enact such a law but is also indicative of the exclusive authority to do so, which, therefore, questions China’s authority to legislate on the subject.  

Hong Kong has a long-cherished Rule of Law in place that would suffer a huge setback with the implementation of the law. Article 18 of the Basic Law explicitly prohibits Beijing from applying national laws in the region, exempting the laws listed in the Annex III of the Basic Law, which shall be confined to those “relating to defense and foreign affairs” and other matters “outside the limits of the autonomy of the region”.[6] It remains far from clear how widely these words could be interpreted to include national security laws in their ambit. The proposed law has become the first National law with criminal provisions to be applied in the region, which raises concerns over China’s commitment towards the protection of the rights and autonomy guaranteed to the people of Hong Kong. 

A major concern that the legislation raises is the setting up of security enforcement institutions in the city. Article 22 prohibits setting up of Central People’s Government’s departments in the city.

Sino-British Joint Declaration of 1984 and the International Rule of Law

It is pertinent to note that the commitment of the Chinese Government towards the Sino- British Joint Declaration has been subjected to speculations in numerous instances, including when the Chinese Foreign Ministry stated that the Treaty “no longer had any practical significance.[7] The ‘high degree of autonomy’ promised to the region under the Declaration is deeply undermined with the said law. The following issues remain answered-

  • Whether the Chinese intelligence agencies in Hong Kong will have the authority to carry out enforcement activities.
  • Whether the Standing Committee of the National People’s Congress will have extra powers to interpret the Hong Kong court rulings on National Security. 
  • What is the scope and ambit of the ‘select cases’ that Beijing would have jurisdiction over?

Although the details are still few, the tailor-made security law would be left for interpretation at the behest of Chinese Security Organisations such as the Ministry of State Security, and the People’s Armed Police would endanger the rights to freedom of speech, expression, and free press.

On October 24, 2014, China reaffirmed its status as the ‘Builder of International Rule of Law’.[8] Strengthening the rule of law at the international level involves respect for the norms of international law. The above mentioned law is, therefore, a grave breach of the treaty raising concerns on the protection of the International rule of Law by Beijing. China acceded to the Vienna Convention on the Law of Treaties of 1969; the rule of pacta sunt servanda under Article 26 of the convention requires it to stay bound to the treaty and perform it in good faith.[9] Not only has China recognized Hong Kong’s right to democratization in the Basic Law, Customary International Law also provides for a ‘right to democratization.’ The move will undoubtedly have a severe impact on the ongoing Pro-Democracy Movement in the region. 

Conclusion

The people’s Republic of China must honor its commitment to the Sino-British Declaration and not interfere with the Rule of Law in Hong Kong. The fate of the pro-democracy movement in Hong Kong is now unknown, and bringing a tailor-made national security law contradicting the Basic Law not only jeopardizes the economic status and pro-democracy Movement in Hong Kong but also imperils Beijing’s status at the international level. Beijing must, therefore, review its move, which is gravely inimical to the International Rule of Law. 


Ekta Garg is a third year student from Army Institute of Law, Mohali.


[1]Kate Mayberry, ‘There’s never an endgame’: Hong Kong after a year of protest, Aljazeera, (June 16, 2020),  https://www.aljazeera.com/indepth/features/game-hong-kong-year-protest-200615104936779.html.

[2]Lily Kuo, A history of resistance: Key dates in Hong Kong’s Battle with China, The Guardian, (May 27, 12:53 BST), https://www.theguardian.com/world/2020/may/27/a-history-of-resistance-key-dates-in-hong-kongs-battle-with-china.

[3]Tony Cheung and Kimmy Chung, Two Sessions 2020: new law will ‘prevent, frustrate and punish’ acts in Hong Kong that threatens national security, top official says, South China Morning Post, (May 22, 2020, 02:52 pm), https://www.scmp.com/news/hong-kong/politics/article/3085617/two-sessions-2020-national-security-law-hong-kong-will.

[4]Id.

[5]Elson Tong, Reviving Article 23 (Part I): The rise and fall of Hong Kong’s 2003 National Security Bill, Hong Kong Free Press, (February 17, 2018, 22:30), https://hongkongfp.com/2018/02/17/reviving-article-23-part-i-rise-fall-hong-kongs-2003-national-security-bill/.

[6]Basic Law, Art. 18.

[7]“China says Sino British Joint Declaration on Hong Kong no longer has meaning, Reuters, (June 30, 2017, 4:51 pm), https://www.reuters.com/article/us-hongkong-anniversary-china/china-says-sino-british-joint-declaration-on-hong-kong-no-longer-has-meaning-idUSKBN19L1J1

[8]Full text of Chinese FM’s signed article on Int’l Rule of Law(2), Xinhua, (October 24, 2014, 18:21), http://en.people.cn/n/2014/1024/c90883-8799769-2.html.

[9]Vienna Convention on the Law of Treaties, Vienna, May 23, 1969, 1155 UNTS 331.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

GOOGLE SUED BY AUSTRALIAN COMPETITION AND CONSUMER COMMISSION FOR ALLEGEDLY MISLEADING CONSUMERS

The Australian Competition and Consumer Commission (ACCC) has filed a legal action against Google over allegations the company did not gain explicit consent from consumers when it expanded its use of personal data and privacy policy.
Aside from tracking people’s online activity on its search engine and platforms, Google also monitors users’ internet activity on “non-Google” sites to boost its targeted advertising.
Google’s updated privacy policy also stated that: “We will not reduce your rights under this Privacy Policy without your explicit consent”.
The ACCC alleges that as Google did not obtain explicit consent from consumers about this change to the privacy policy, Google’s statement that it would not reduce consumers’ rights without their explicit consent was also misleading.

(BY- ANUPAMA SOUMYA)

THE LEGALITY OF LAW ENFORCEMENT BY MILITARY: USA’S ONE STEP FURTHER AWAY FROM LIBERALISM

Samavi Srivastava and Utkarsh Vats, both first year students of National Law University, Bhopal, discusses the legality of law enforcement by Military in U.S.A in light of The Insurrection Act and the Posse Comitatus Act. 

THE PROBLEM 

As protests against racism and for civil liberties in the United States proceeded, while some world leaders came out in support, others were less than accommodating of them. President Trump, a hardcore Republican, not only expressed his disdain of the protests, but also threatened to deploy the military against the protestors if they did not retreat. This brings forth various questions regarding the legality of such an action; the ambit of the presidential powers, their conflict with powers of the states, etc. Two important legislations come into play to address this question: The Insurrection Act and the Posse Comitatus Act. 

Further, is an analysis of the general trend in the USA of moving away from ideas of liberalism, and whether this conflicts with democracy as a whole. This trend also threatens the picture of the USA as the role model of a western liberal democracy. A larger picture is brought to light while assessing the general shift of the world away from traditional ideals of liberalism, and how USA’s actions influence it.  

THE LEGALITY OF TRUMP’S STATEMENT

The idea of prohibiting military from interfering in the affairs of civilians has existed since the Magna Carta of 1215, which iterated that no free man is to be arrested or imprisoned or otherwise withheld except by the law of the land. This view was further upheld by Sir William Blackstone. He believed that interference of the army ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land, for that would be against the Magna Carta. 

Previously, the United States Congress had, through statutes like the Fugitive Slaves Act of 1793[1], allowed the usage of military by federal marshals[2], the American equivalents of British County Sheriffs, for executing a warrant issued by the slave owning family whose slaves had run away. This practice of indifferently using the military prevailed through the civil war into the 1870s. Eventually, in 1877, the House of Representatives, that had a Democratic majority, introduced an Army Appropriation Bill and it was eventually passed by the Senate with a Posse Comitatus clause[3], to limit the arbitrary use of the federal military resources by the President among others. The PCA that exists today remains largely unchanged from the original one.

The PCA outlaws the usage of military for law enforcement purposes unless expressly authorised by the constitution or an act of Congress. This however, leads to a contention between Presidential and Congressional powers. The constitution requires the President to ensure that laws are faithfully executed.[4] The Supreme Court has ruled in In re Debs[5], that when an emergency arises threatening some responsibility entrusted to the federal government, the President may call upon “the army of the Nation, and all its militia to brush away the obstructions.” Simultaneously, the constitution vests Congress with the power to establish, maintain, and regulate the Armed Forces and with the power to describe the circumstances under which the militia may be called into federal service.[6] 

However, the Supreme Court has tried to solve this contention between Presidential and Congressional authorities. In Texas v. White[7] and Youngstown Sheet & Tube Co. v. Sawyer[8], respectively, the Supreme court ruled that the President’s power under the Guarantee Clause of Article IV, Section 4[9], which guarantees the states protection against domestic violence, is only provisionally effective until such time as Congress acts, and that the President may not always use the Armed Forces to meet a domestic emergency when Congress has previously resisted an invitation to sanction their employment.

The Insurrection Act[10] is one of the most significant exceptions to the PCA. It states that the President may call upon the military forces, land or naval, as and when there are cases of insurrection leading to obstruction of laws in the United States or any of its states. However, even before implementing this act, the President must publicly make a proclamation ordering the insurgents to peacefully disperse within a reasonable time, giving them the opportunity to retreat.[11] 

There are certain conditions under which the President may resort to the Insurrection Act while ordering the military to interfere in a state’s functioning. The least controversial circumstance is when the legislature of the State, or otherwise the Governor, itself requests the help of the military to suppress the insurrection.[12] The second condition is when the President believes that it is impracticable to suppress rebellion and enforce laws within a state through the ordinary course of judicial proceedings, and considers it necessary to enforce the armed forces.[13] An example of such an act of President was when George Washington ordered troops to clamp down on the whiskey rebellion started by angry farmers who resented federal tax impositions. This situation initially required an associate justice or the district judge to notify to the President of the United States about the lack of functioning of the judiciary, however, it was eventually made unnecessary. This condition brings in subjectivity and relies mostly on the President’s assessment of the situation in a state, which may or may not always be accurate. Further, terms such as ‘rebellion’ or ‘unlawful obstruction’ are not defined with precision and thereby accord the President with considerable liberty to interpret them. Finally, the President may also call upon the military if he believes that violence in a state is hindering the rights or privileges of any part or class of its people, or is preventing execution of laws and impeding their course of justice, and the authorities within the state are unable to protect such laws and rights.[14] This condition also allows room for subjectivity and hence potential misuse. President Dwight Eisenhower relied on this section in 1957 in Arkansas to eliminate obstructions of justice.

This Act was amended in 2005 post the lack of an adequate response from the Centre during Hurricane Katrina. The Amendment added domestic violence caused by “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition” as a condition for deploying the armed forces in a state to restore public order. This was seen by many as a significant amplification of the powers of the President and an infringement of the powers of a state. However, this ought not to be confused with the Stafford Act that authorises the President to call upon the armed forces for providing aid in states stricken by a natural or man-made disaster. This, unlike the Insurrection Act, does not constitute an exception to the PCA because it merely allows the forces to aid the states in providing relief from the damages caused by the disaster through health and safety measures. It does now empower the forces to implement law and order in the state. 

The Congress also created another exception to the PCA for conditions involving the ‘war on drugs’. The Secretary of Defence has the power to enforce military equipment and personnel for enforcing law related to prevention of the drug problem. Albeit these statutory provisions do not allow direct involvement of the military such as arrests, it encourages their participation in  surveillance and maintenance of peace. 

THE BIG PICTURE 

While Trump’s statement may seem to be made in jest without real implications, it is reflective of a general turn that the United States is taking away from the traditional ideals of Western liberalism. The current administration, with anti-trade, anti-globalism, anti-immigrant policies, along with a rejection of the idea of climate-change, the recent reversal of transgender healthcare protections, and other major policy decisions, has never followed the path of liberalism. Perhaps the apparent apathy towards the ongoing protests for rights and liberties is not so out of context. Yet, President Trump is a democratically elected leader who enjoys popularity among his supporters. 

This suggests that liberalism and democracy are not as inextricable as was once thought. Trump enjoys populism; the support of the ordinary people, which is regarded as the converse of liberalism. “The illiberal populism of Donald Trump entails the reckless use of the mechanisms of democracy to disenfranchise political minorities and diminish civil liberties.” Essentially, populism is democracy without liberalism. The United States was seen as an ideal of a Western liberal democracy by other nations. However, this change might create a ripple effect leading to nations across the world moving away from liberalism. 

The recent tide away from liberalism is threatening to reverse the accomplishments of the modern human rights movement, putting minorities and endangered sections of societies across the world in a position of great disadvantage. Therefore, it is very important to uphold the democratic principles of progressivism and political stability. The most effective way of restoring a less extremist thought is to increase inter group contact. This will help us give up the idea of supremacism and bring everyone out of isolation. Contact and dialogue will put forth ideas of unity and put things in perspective. As Richard Dawkins, an evolutionary biologist and author from Oxford, said, “National pride has evil consequences. Prefer pride in humanity. German pride gave us Hitler, American pride gave us Trump, British pride gave us Brexit. If you must have pride, be proud that Homo sapiens could produce a Darwin, Shakespeare, Mandela, Einstein, Beethoven.” 


Samavi Srivastava and Utkarsh Vats are first year students from National Law University, Bhopal.


[1]Act of Feb. 12, 1793, Respecting fugitives from justice, and persons escaping from the service of their masters, 1 Stat. 302, as amended by 9 Stat. 462 (1850).

[2]See, e.g., 1 Stat. 87 (1789).

[3]See 7 CONG. REC. 3845 (1878)

[4]U.S. CONST. art. II, § 1

[5]In re Debs, 158 U.S. 364, 381 (1895)

[6]U.S. Constitution. art. 1 § 8, cl. 12-16)

[7]Texas v. White, 74 U.S.(1869)

[8]Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

[9]U. S. Const. Art. IV, § 4

[10]Insurrection Act of 1807, ch. 39, 2 Stat. 443, 443 

[11]10 U.S.C. § 254 (2018)

[12]10 U.S.C. § 251 (2018)

[13]10 U.S.C. § 252 (2018)

[14]10 U.S.C. § 253 (2018)

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

THE FUTURE OF THE INTERNATIONAL COURT OF JUSTICE

Samridhi Talwar, a 3rd year Law Student from University School of Law and Legal Studies, GGSIPU discusses the future of the principal judicial organ of United Nations : International Court of Justice.

We are at the advent of an era that shall prove to be an oyster for the cardinality of the International Court of Justice. The ICJ was established as the principal judicial organ of the UN in 1946. It is equipped with the capacity to iron out disputes on myriad issues including the use of nuclear weapons, genocide, conservation of the environment, use of force, maritime and land boundaries, etc. To resolve these issues, the Court consists of a panel of 15 judges belonging to countries all around the world from various geographic regions, cultures, ethnicities, and principal legal systems, who serve in their capacities. The Court primarily is aimed at resolving contentious legal disputes between states. However, this function is restricted on account of the imperativeness of the consent of countries to have the dispute settled by the ICJ. The Court is also endowed with the capacity of advisory proceedings. According to this function, the Court provides authoritative guidance on issues at the core of international law to the United Nations General Assembly, the United Nations Security Council, and any other organs of the United Nations after authorization from the General Assembly. The International Court of Justice has been instrumental in solving various international disputes such as Kosovo’s Declaration of Independence, the case of Australia against Japan1, the Northern Sea Continental Shelf case2, the case of Argentina against Uruguay3 etc. 

In this essay the author will be discussing what the future holds for the International Court of Justice with a highlight on its role as the principal judicial organ of the UN, the non-binding nature of the judgments, it’s potential to transform the landscape of sustainability and environment in the world and specific suggestions to enhance the work of ICJ in the future.

To determine the future of the World Court, it is imperative to understand its past and present. The United Nations Charter lays down that as the principal judicial organ, the International Court of Justice functions as a body created with the list of maintenance, protection, and safeguard the legality of proceedings and policies that steer the United Nations and its organs and agency. Since its inception, this Court has been attempting to thrive on its purpose of settling international disputes and resolving issues that could potentially lead to a breach of peace.4 The ICJ has been delivering landmark judgments including the Kulbhushan Jadhav Case (India v Pakistan)5, LaGrand case (Germany v. the United States of America)6, Corfu Channel case (United Kingdom of Great Britain and Northern Ireland v. Albania)7, Gabčíkovo-Nagymaros Project case8, North Sea Continental Shelf case (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands)9, Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria)10, Nuclear Weapons case11, Aegean Sea case12, Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), etc.13

Despite the various glorious judgments to act as feathers in the cap of the World Court, it suffers from the grave limitation of consent. The functioning of the Court is majorly dependant on the trust that states place in the ICJ.14 consent is imperative according to the fundamental principles that govern the International Court of Justice. The entire premise of the jurisdiction of the ICJ is based on consent. By this principle of international law, a state cannot be bound to seek recourse or submit a dispute with any other country through the process of any likes of peaceful settlement inclusive of mediation and arbitration without its consent. A State cannot be summoned to appear in the ICJ regarding a dispute until it wilfully conforms to the requirement of consent and submits the issue to the jurisdiction of the World Court. The further evolution and future effectiveness and efficiency of the International Court of Justice are also dependent on the trust that states place in the Court. Though theoretically, the regulation of relationships by virtue of law is better than the regulation by force. However, the states are sovereign entities with complete authority to grant consent and conform to the Court’s jurisdiction or deny it.15 The first step to a more impactful future of the ICJ is that the states should state placing a greater degree of trust in the Court, which would, in turn, lead to an expansion of the jurisdiction of the Court. 

The limitation that further arises post the issue of consent is the non-compliance of states to the judgment. The UN Charter provides for strong ties and a harmonious relationship between the International Court of Justice and the United Nations Security Council.16 The ICJ is endowed with the role of performing the task of designating responsibilities and rights in a congruous manner and adjudicating on competitive legal claims and disputes of states.17 The Security Council has the responsibility of giving effect to or executing the judgment in cases where the judgment debtor fails or refuses to comply with the decision of the World Court. 

However, ensuring the compliance of a decision of the International Court of Justice has its own challenges. The primary hurdle in the effective execution of decisions is that the United Nations Charter provides for the enforcement of judgments of the ICJ alone rather than enforcing all the decisions of the ICJ, i.e. interim decisions and final judgments. Moreover, the Security Council is not bound to enforce each and every judgment of the Court and is equipped with complete discretion of whether to enforce the decision or not and if it chooses to enforce it, the measures taken to enforce the decision.18 Thus, the enforcement of the judgments given by the ICJ is marred with politics of the Security Council and is without any engagement of the decision-taking Court. Though relatively infrequent, the non-compliance of judgments has been an issue and will linger as an issue because of the lack of an international body such as the International Police Force to keep a check on the implementation of the judgment. 

However, this limitation has neither always nor completely hindered the International Court of Justice from effectively adjudicating on disputes due to the presence of certain sanctions that are used to ensure that the states duly satisfy their obligations. An illustration of the same is the Australia v Japan case19 where the Court was able to effectively protect global values and resolve the case. 

Further, in the future, the International Court of Justice could play a larger kaleidoscopic role in international conflict resolution. Certain suggestions for the same are that the Court could also bring into its ambit political disputes and issues apart from legal issues. This is because political issues are the root of most conflicts that arise. Moreover, the consent-based jurisdiction hinders the Court from dealing with grave issues merely because the wrongdoer state does not consent to its jurisdiction. Thus, consent-based jurisdiction could be altered to make the Court more effective. The jurisdiction of the Court could also expand to individuals and organizations so they can also avail remedies from the World Court.20

In the coming future, the role of ICJ and other Courts and tribunals has the potential to grow manifold as tensions among states grow with various issues including nuclear threats, pandemics, threats to sovereignty, etc. The ICJ shall have a proactive role in resolving disputes, maintaining peace, ensuring human rights, enhancing the political development of states, safeguarding child rights, gender disparities, and rights of refugees, etc.21 The world is gradually coming to realize the cardinality of the ICJ and the imperative role that they will potentially play in preventing baseless wars and maintain welfare and peace.

The next part of the essay will discuss the role and potential future of the International Court of Justice in the protection and safeguard of the environment. 

The world has been a witness to the gradual expansion in the role of the International Court of Justice in the protection and preservation of the environment. The World Court has duly recognized the imperativeness of encountering issues and concerns relating to the environment in a holistic manner. Therefore, there has been a spur in the cases relating to the environment on the Court’s radar.

The ICJ, in accordance with the UN Charter, is well within its bounds to resolve and settle disputes that involve environmental issues by identifying and adjudicating on questions pertaining to environmental law. This is based on the fact that international environmental law constitutes an important element of the community’s public order. By taking environmental issues in its ambit and adjudicating on the same, the Court fulfils its basic objective of resolving disputes amongst states alongside articulating the general values that are a contributing factor in the evolution and development of the law.22 However, it is pivotal to understand that the International Court of Justice can only resort to the issues of the environment in a matter before it if the issue pertaining to the environment is principally involved in the rights and obligations of the parties to the case and is definite in terms of the context of the case. This is on account of the fact that the ICJ is a Court of law. 

Indeed, the Court can persevere in leaving its mark in protecting the environment as done in the Whaling case (Australia v Japan),23 Pulp Mills on the River Uruguay case (Argentina v Uruguay),24 Corfu Channel case,25 Barcelona Traction case,26 Gabčíkovo-Nagymaros Project case (Hungary v Slovakia),27 Nuclear Tests case28 and the South West Africa Case.29 However, its hands are tied by the UN Charter, according to which the Court cannot tackle the impending and burning issues and concerns regarding the environment suo moto. The ICJ can only resort to passing a judgment relating to safeguarding the environment of a case is brought to the Court, and the case has been substantiated to conform to the Court’s competence.30 Though the ICJ is expanding its feet in the protection and conservation of the environment through its bilateral adjudications, the role of ICJ using this mode in environmental protection is limited in scope. 

It is extremely crucial that the protection of the environment is duly addressed and tackled by the International Law, specifically by the World Court. It is safe to say that the ICJ has taken the baton and is paving the way to a future where realms of environment and sustainability will also be effectively handled by the world Court through various judgments.31 It has been successfully established by the ICJ in multiple cases that a general obligation and duty of all states exist to make certain that all activities are undertaken by them within their control, sovereignty and jurisdiction should duly respect the environment of areas that are beyond their national control along with the environment of other states.32 This principle is now considered as a part of the customary international law. The ICJ has also established the principle that States have an obligation towards the entire international community cohesively with regard to environmental concerns.33 Moreover, recently the World Court significantly emphasized that respect for the environment is not just a duty attached to states but also holistically to the entire mankind.

However, another avenue where the International Court of Justice can potentially play a role in safeguarding and protecting the environment is through its advisory jurisdiction. Despite the lack of a concrete issue between states raised before the Court, the Court has the authority to articulate the principles of law that are involved in certain issues that are raised by the United Nations General Assembly, the United Nations Security Council, or any other organ of the United Nations.34 This concept, though is currently neither theoretically developed nor practically feasible, can be a great weapon in the sphere of environment protection and conservation. 

With the concerns for the environment and sustainability mushrooming by the second, the International Court of Justice may consider re-establishing the Permanent Environmental Chamber that was abolished in 2006 and actually putting it to use to resolve issues pertaining to environmental degradation and sustainability by States.35 Moreover, it is imperative that the Court should start promoting and considering, in its judgments, a test to balance the legitimate interest of states for development with the overall concerns of the environment, as has already been held by the Court.36 The International Court of Justice could also take steps to metamorphose environmental rights into human rights. Such human right should entail the right protection of the environment and a corresponding duty of monitoring and environmental impact assessment. In the future, the possibilities of States using environmental issues directly in litigation in the International Court of Justice are very bright and foreseeable.37 This shall consequently result in environmental principles constituting a branch of interpretation of legal issues by the Court. Lastly, since environmental issues are looming as a threat to mankind, it is viable that the United Nations grants the International Court of Justice suo moto jurisdiction in cases pertaining to matters of environment and sustainability. The suo moto jurisdiction may also be coupled with provisions that may ensure enforceability of the decisions of the Court.

In conclusion, the future of the Court is neither pessimistic nor unrealistic, until the time the world’s expectations regarding the International Court of Justice are managed realistically. Since the aboriginal intention regarding this Court at the founding of the UN was that the ICJ becomes ‘at the very heart of the general system for the maintenance of peace and security’. One need only glance at current news, however, to know that this objective has not, nor is it ever likely to, come into complete fruition. No doubt most disputes and issues in the international community will continue to be resolved and settled, not via the determinations of rights in Court and the pathological conduct of the judges applying international law, but by virtue of diplomacy and negotiation. This ‘principal judicial organ of the United Nations’ will continue to function as it always has: as a limited, but important, forum for resolving international disputes until certain changes are made to transform its role. Performing the role of the principal judicial organ of the UN, the ICJ has been widening its horizons to the corresponding developments in the society and the international community. The same is visible from the jurisprudence and achievements in the fields of human rights, refugee rights, and environmental law. When it is not burdened with unrealistic expectations, the performance and importance of the Court can be better appreciated.


Samridhi Talwar is a 3rd year Law student from University School of Law and Legal Studies, GGSIPU


Endnotes

1.  Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, ICJ Reports 2014. 

2.  Continental Shelf (Tunis. /Libya) [1982] ICJ Rep 18; Continental Shelf (Libya/Malta) [1985] ICJ Rep 13.

3.  Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, April 20 2010, ICJ Reports (2010).

5.  Jadhav Case (India V Pakistan) 2019 (ICJ).

6.  LaGrand (Germany v. United States of America), Judgment, June 27 2001, ICJ Reports (2001). 

7.  Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment, April 09 1949, ICJ Reports (1949).

8.  Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, September 25 1997, para. 140, ICJ Reports (1997).

9.  North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, February 20 1969, ICJ Reports (1969).

10.  Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, October 10 2002, Reports (2002).

11.  Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, July 08 1996, ICJ Reports (1996).

12.  Aegean Sea Continental Shelf (Greece/Turkey), Judgment, December 19 1978, Reports (1978).

13.  Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, September 13 1990, ICJ Reports (1990).

14.  Future Work for International Court of Justice Depends on States’ Trust, Its President Tells Sixth Committee, Offering Insights into Case Law, UNITED NATIONS, (June 04, 2020, 6:20 PM), https://www.un.org/press/en/2017/gal3558.doc.htm.

15.  Aloysius P. Llamzon, Jurisdiction and Compliance in Recent Decisions of the International Court of Justice, OXFORD ACADEMIC, (June 04, 2020, 6:15 PM), https://academic.oup.com/ejil/article/18/5/815/398671.

16.  THE UNITED NATIONS CHARTER § Art. 94(2).

17.  Ibid.

18.  Ibid.

19.  Ibid.

20.  Ibid.

21.  The Future of International Courts and Tribunals: What Developments and Models Will We See in 20 Years?, BRANDEIS INSTITUTE FOR INTERNATIONAL JUDGES – 2013, THE INTERNATIONAL RULE OF LAW IN A HUMAN RIGHTS ERA, (June 04, 2020, 6:35 PM) https://www.brandeis.edu/ethics/pdfs/internationaljustice/biij/Future_Intl_Courts_2013.pdf.

22.  Dr. Jorge E. Viiuales, The Contribution of The International Court of Justice to The Development of International Environmental Law: A Contemporary Assessment, FORDHAM INTERNATIONAL LAW JOURNAL VOLUME 32, ISSUE 1, 232 (2008).

23.  ibid.

24.  ibid.

25.  ibid.

26.  Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium/Spain), Preliminary objections, Judgment, July 24 1964, ICJ Reports (1964).

27.  ibid.

28.  ibid.

29.  South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), Judgment, July 18 1966, ICJ Reports (1966).

30.  Afshin Akhtarkhavari, Power, Environmental Principles and the International Court of Justice, AUSTRALIAN YEAR BOOK OF INTERNATIONAL LAW VOL 28, 91.

31.  Hisashi Owada, International Environmental Law and The International Court of Justice Inaugural Lecture at The Fellowship Programme on International and Comparative Environmental Law, IUSTUM AEQUUM SALUTARE II, 5 (2006).

32.  ibid.

33.  ibid.

34.  ibid.

35.  ibid.

36.  ibid.

37.  ibid.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

U.S. – Taliban Agreement Prospects for Peace & Stability

Sarthak Sharma, a 3rd year Law student from Army Institute of Law, Mohali throws light upon the US-Taliban Agreement, the history that eventuated the aforementioned Agreement and the possibility of coveted peace that the agreement withholds.

The Taliban has signed a deal with the United States of America, possibly paving the way for coveted peace. To understand the rudiments of this agreement, I’ll be walking through the pages of history in brevity to understand the relationship and involvement of the USA, the Taliban, and Afghanistan and how is it that this group became one of the most influential political actors in the war-torn country.

  1. Background
  • Cold War

In 1979, the Communist Soviet Union forces invaded Afghanistan’s territory to support Afghanistan’s communist party, which had acceded to power, in a 1978 coup. The regime vigorously suppressed opposition, which saw the rise of anti-government and insurgent groups. Soon, the country was in open rebellion, and this led to the interference from international players. The Soviets and the Afghan Communist Party were mainly opposed by a group called the ‘Mujahideen,’ who were essentially a guerrilla-type militants led by the Islamist Afghan. The Mujahideen were given a large amount of financial and military aid in the form of troops, equipment, and training from the USA, mainly Saudi Arabia, the United Kingdom, and Pakistan in the mid-1980s. After rigorous battles between both the groups, the latter were eventually successful in driving the Soviets out in 1989 and end the communist era in Afghanistan and subsequently initiated the birth of a new regime in Afghanistan.

  • Rise of the Taliban

After the exit of International players, we saw a split in the Mujahideen in terms of who should get to rule Afghanistan during the 1992 civil war, as the only common ground the Mujahideen had was to expel the foreign forces and nothing further. The Taliban were, predominantly, fundamentalist ethnic Pashtun students from traditional Islamic schools, and were one such Mujahideen group. The group was formed in the early 1990s and would rule over Afghanistan from 1996-2001. 

The movement gained momentum when they promised to attain stability and the rule of law, and find a state under Islamic Principles. Taliban seized the center of Kandahar province on Oct. 3, 1994. By September 1996, they managed to seize the capital, Kabul, from President Burhanuddin Rabbani, who was viewed as anti-Pashtun and corrupt. It was that year the Taliban declared Afghanistan an Islamic emirates.

  • 9/11

Osama Bin Laden was part of a group known as ‘Afghan Arabs’ which were volunteers from Arab to wage jihad against atheist communists during the Soviet era. Fighting originally side by side with the Americans, Bin Laden would go on to find the terrorist group, ‘Al-Qaeda,’ which organized and conducted the deadly and unforgettable 9/11 attacks on the twin towers and the pentagon.  This attack shook the entire world, and the US vowed to take revenge. President, George W Bush, released a statement, demanding the Taliban turn over Al Qaeda and Bin Laden or be crushed by the hands of the US as they were giving them refuge. Upon refusal, the USA retaliated by invading Afghanistan. 

The USA contacted The Northern Alliance, a group of former Mujahideen, which had not sided with the Taliban and had the support of the US even during the Soviet era war. A CIA squad met them in Afghanistan and got their support through 3 Million Dollars in cash, equipment, and training. With a combination of aerial bombing and the US Coalition, the war against the Taliban was over in just two years.

  • The USA is Here to Stay

Even after the war got over, the USA maintained its presence. The main reason being that the primary objective of the USA’s invasion, i.e., capturing Bin Laden, was a failure, as most of the Al Qaeda leaders, along with Bin Laden, were found to be missing once the battle was over. The assumption was that they had fled to Pakistan. The USA, therefore, continued its operations there to smoke him out.

The USA further had to stay back to facilitate and support the newly formed US-backed Hamid Karzai’s government. The main reason the USA wanted to secure their position in Afghanistan, was because of the strategic advantage. Due to the mitigated disaster, albeit a victory of Project Anaconda where forces had come into South Afghanistan from Pakistan, the US realized that the threat is not over. Being stationed in Afghanistan provided the USA with the opportunity of more direct interventions in the Middle East. This strategic positioning helped them in the 2003 Iraq war. 

  • Taliban Resurgence

As mentioned above, the main reason for the US’s continued stay in Afghanistan was the strategic advantage; an advantage they thoroughly employed; employment that cost them dearly. With the advent of the 2003 Iraq war, there was a shift of focus from the activities in Afghanistan, and US resources were redirected to Iraq instead. This paved the way for the Taliban’s reentry into the power dynamics of Afghanistan. Taliban soon gained local legitimacy once again, with an increased number of attacks and suicide bombings, and took control over 18 districts, and the US-backed government was constrained to Kabul.

  1. The US-Taliban Agreement: A Road to Nowhere

Fast forward to today. The deal has been signed and agreed upon by both parties. The highlights of the deal are-

  • Removal of US forces from 12,000 to 8,600 within 135 days, followed by a complete removal if the Taliban follows through on its commitments.
  • Prisoner swap of 5000 Taliban for 1000 Afghan forces.
  • Afghanistan won’t become a haven for terrorists to launch terror attacks on the US and its allies.
  • Initiation of peace talks with the locals. 
  • A three-way ceasefire (one which has been gravely violated since the agreement). 

Going over the contents of the deal, though, we find a lot of underlying problems that are difficult to fix given the established context.

  • The US Perspective

The US has spent three President Terms in Afghanistan, and all three have had different approaches to dealing with the problem. This has caused a lot of discrepancies as to what the end goal of the US is. Now trust is being laid on the Trump Administration out of all; A man who is the self-appointed harbinger of peace. There are beliefs that the USA has bitten off more than they can chew and now are simply looking for an exit. They realize that this might be a war they can’t win and is costing them too many dollars and lives. The US invaded Afghanistan to capture Bin Landen. Although he was in Pakistan and not Afghanistan, they managed to execute him and haven’t been that successful against the Taliban. So the question remains, why is the US leaving now?

  • The Taliban Perspective 

The main reason for the Taliban’s existence was to eliminate all foreign forces present in Afghanistan, and it seems like they are getting exactly what they wanted from this deal and have managed to make the US sacrifice and oblige to a lot more than they have had to. The Taliban simply want the US to leave and therefore are also arguing with the US over the deal demanding immediate and absolute removal of forces instead of it being a gradual measure. Whilst talking of peace, it’ll be peace on whose terms? Once the US leaves what’s to stop the Taliban from going back to their old ways. Can you trust a terrorist organization this much? The Taliban want a haven to live their way of life, torment others, carry out their narcotic activities, and suppress women without interference. Further, the deal only talks about not carrying out terrorist acts against the US and its allies, so they are still free to propagate violence otherwise. 

  • The Afghan Perspective 

This situation is essentially a win-win-lose. The US got Bin Laden, the Taliban is getting rid of the Americans, and the locals are the ones who are going to be suffering getting caught in the middle of all this. A major shortcoming of this deal committed by the US is that they are backing out without ensuring security, which shows that it was never their agenda in the first place. The Afghan people need to be incorporated into the mainstream, and that will happen by doing the same with the Taliban. Yet, there is no plan for their disarmament and reintegration into society. The negotiation being closed doors was another setback. The real challenge is the intra-Afghan talks; however, there is a massive lack of faith on both sides. The Taliban looks at the government as puppets of the US, and the Afghan government has already refused the point of a prisoner swap. Forget about the success of such talks, but rather their initiation itself seems far-fetched. Lastly, the elephant in the room is the problem of power-sharing. In Afghanistan today, there is a power vacuum between Ashraf Ghani and Abdullah Abdullah, claiming the seat of power, adding the Taliban into this arrangement, and having a real mess.


Sarthak Sharma is a 3rd year Law student from Army Institute of Law, Mohali


IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

Uyghur Human Rights Policy Act becomes the first law to safeguard the Human Rights crisis in East Turkistan

Donald Trump, President of USA signed the Uyghur document to protect the Uyghurs in China. It is the first law which talks about the crisis in East Turkistan. This law constitutes the commitment made by the US Government to deal with the human right crisis. The house speaker in US stated that “Beijing’s barbarous actions targeting the Uyghur people are an outrage to the collective conscience of the world.” 

This Act will operate as a protective shield for the people who are getting tortured in China, this Act will also provide the sanctions to the officials and to the concerned authorities who is forcing the Uyghur labor.

Source: – economictimes.com

(By -Sanyogita)

SPECIAL EDUCATION LAW IN THE UNITED STATES OF AMERICA

Garima Singh, a law graduate from University of Petroleum and Energy Studies, Dehradun discusses Individuals with Disabilities Education Act (IDEA), 2004 which throws light upon the need for laws that govern the mental health of children in Educational aspect.

Introduction

Children with special needs require special treatment in their day to day life. They require intensive care and assistance to do their daily chores. Education is one such area where utmost patience and diligence is sought from parents and teachers. There are very few laws that govern the mental health of children in the educational aspect. One such law in the USA is Individuals with Disabilities Education Act (IDEA) 2004, that covers the rights of students and their parents to receive Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). 

IDEA was passed to help and support students who face difficult situations every day. This Act governs students from birth till the age of twenty-one. Furthermore, the act is divided into 4 parts wherein:

  1. Part A – the General Provisions
  2. Part B – Assistance for Education of all Children with Disabilities
  3. Part C – Infants and Toddlers with Disabilities
  4. Part D – National Activities to Improve Education of Children with Disabilities

The foremost part is to create an Individualized Education Program (IEP) under which a plan is laid out considering the strengths, weaknesses, goals and needs of the student by a team of support personnel, guardians and the student (if considered appropriate). 

The layout is then put into motion to determine the Least Restrictive Environment (LRE) for the student.

Definition of Issue

To discuss Least Restrictive Environment (LRE) in context of the IDEA Act.

History

On November 29, 1975, President Gerald Ford signed into law the Education for All Handicapped Children Act (AHCA) (Public Law 94-142), now known as the Individuals with Disabilities Education Act (IDEA).[1] This Act made it mandatory for the states to follow the protocol of having least restrictive environment for the children. This was deliberated to ensure equal status, due process and freedom among the individuals. The era of 1900s marked the first approach for these liberties. There is no direct provision dealing with LRE in the IDEA Act. Therefore, the first case regarding LRE, viz. Daniel R.R. v. State Board of Education[2] was an interpretation of the EHA’s directives. It was ruled by the court that “It is necessary for students to be educated on a continuum of what is considered the Least Restrictive Environment (LRE).”[3] It was stated that the need of differently abled students to be a part of academic and extracurricular activities was well within their rights. 

In another case of Board of Education, Sacramento City Unified School District v. Rachel H.[4], the court identified four factors determining the LRE for a student: (1) the educational benefits of placement full-time in a regular class; (2) the non-academic benefits of such placement; (3) the effect a student have on the teacher and children in the regular class; and (4) the costs of mainstreaming the student.[5] Further in the case of T.R. v Kingwood Township[6] Least Restrictive Environment (LRE) is the one that, to the greatest extent possible, satisfactorily educates the disabled child with the non-disabled, in the same school the child would attend if the child was not disabled.[7]

Current Status

After the rulings of the court, the schools have focused on the disabled children with more care and aid required as per a child-to-child basis. This was not the scenario before the intervention of the court. The rigorous monitoring by the federal and legislative bodies have made LRE into a success. The student is more progressive towards his studies, less absent from the classroom teaching and fewer disciplinary actions are taken towards him during the course.  This proved beneficial for the students with non-disability as well. There is much more interaction now among these peers, which has opened more opportunities for both groups. For example, in the case of Victor[8], LRE proved to be exceptionally rewarding. He was qualified as an emotionally disturbed child who abused and hit other students. He even tried to hurt himself and did not comply with his mentor’s requests which made him lag in his studies. The IEP team laid out the plan where he was to be accompanied by an aide to his classroom. As math being his strongest subject he was to devote 30 min every day in his fifth grade regular classroom. He was also required to spend time with his classmates during recess, class parties and silent reading to increase the social interaction as well as to make friends. 

Another example is of Sara who learnt best using a kinesthetic or tactile approach. The visual/auditory approach used in the general classroom had not worked in the past. A resource room setting proved to be more appropriate for using a tactile approach, with manipulatives for all academic areas.[9] These children showed exemplary transformation in their studies. Same level of enthusiasm was seen in Jodi, a sixth-grade student with a history of distractibility and off-task behavior. During her fifth grade year, several attempts were made to include her in the general education reading groups. Behavior management plans and reinforcement techniques had little effect on her distracting behaviors.

Personal Impact

The IDEA greatly benefited the students who were held captive of their right to free and fair education. The barrier between a special child and his right to receive proper education is now removed. This has impacted the society in a progressive and reformative manner. The equality of every individual to receive services for the education are absolute by the schools. As deduced by the present author, LRE must be introduced from preschool. A child gets accustomed to a learning pattern from a very tender age in order to belong to such inclusions. This also gives a chance to the teacher to communicate and analyze the child more thoroughly. For example, an 11-year-old child would find it a bit difficult to adjust to a new environment than a 3-year-old who has started his preschool with such setting.

Conclusion

The implementation and governance of IDEA Act has been exceptionally respectable. This Act not only opened the gates to millions of children who were deprived of their rights but the harassment and discrimination with these children has been uprightly put to an end. LRE is not only a recognized legal right but also a medium to seek the opportunities. It has been a proven fact over the years that a student placed in a general classroom showed more outcomes in learning than a child in the most restricted area. The Act lays responsibility on the schools to recognize a child’s ability and deliver him/her with the best suited environment for the overall growth.


Garima Singh is a Law Graduate from University of Petroleum and Energy Studies, Dehradun


References

[1](education, 2017) https://sites.ed.gov/idea/about-idea/#IDEA-History 

[2]874 F.2d 1036 (5th Cir. 1989)

[3](Daniel R. R. v State Board of Education, n.d.) https://sites.google.com/site/jessalynsimmsfinal/influential-court-cases/daniel-r-r-vs-state-board-of-education

[4]14 F.3d 1398 (9th Cir. 1994)

[5](Sacramento City Unified School District, Board of Education v Rachel H, 1994) https://law.resource.org/pub/us/case/reporter/F3/014/14.F3d.1398.92-15608.html

[6]205 F.3d 572 (3rd Cir. 2000)

[7](US Supreme Court Decisions) https://specialeducationlawyernj.com/special-education-law/landmark-cases-in-special-education-law/

[8](Least Restrictive Environment: Benefits & Examples, 2020) https://study.com/academy/lesson/least-restrictive-environment-benefits-examples.html

[9]The Least Restrictive Environment, 2006) https://files.eric.ed.gov/fulltext/ED498472.pdf 

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.