On 11 December 2019, the Indian Parliament passed the Citizenship (Amendment) Act. The Act received Presidential assent the next day, and will come into force when notified by the Government. When news of this broke, peaceful protests erupted across the nation in response, voicing concern about the ambitions and implementation of the Act. These protests aim to engage the Government with dissent about the Law. It is targeted specifically against the backdrop of other Law and policy that operate in India and its constituent States at the moment: including, but not limited to the National Register of Citizens. This post is in furtherance of some States issuing statements against these laws, seeking protection for religious minorities. It operates under the assumption that taking cognizance of these happenings, at least one State will consider international litigation and seek the intervention of the International Court of Justice in this matter. The ambition of this post will be to outline a possible legal strategy for these States to allow for the most meaningful intervention by the Court.
The Citizenship Act, 1955 regulates on what grounds an individual may be granted Indian citizenship. Under the Act, illegal migrants are defined as foreigners who: (i) enters the country without valid travel documents, like a passport and visa, or (ii) enters with valid documents, but stays beyond the permitted time period, and are not entitled to citizenship.
Illegal migrants may be imprisoned or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920. In 2015 and 2016, exercising powers under these Acts, the Government issued notifications exempting certain groups of migrants from imprisonment and deportation. These groups are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who arrived in India on or before December 31, 2014.
In furtherance of these notifications, the 2019 Amendment with which we are concerned makes the abovementioned groups of migrants eligible for citizenship. It excludes from its purview Muslims who are illegal migrants. Additionally, it specifies that the Law will not have effect in certain regions in Northeastern India.
The present edition of the National Register of Citizens (NRC) is a creature of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, formulated under the Citizenship Act, 1955. The Rules stipulate the creation of a Register of all Indian citizens residing across the entire country. Individuals have to prove their citizenship in order to be included on the Register. At present, however, the Register has been prepared only in Assam. The rationale behind this selective implementation deserves more context.
Assam is a State in the Northeastern part of India, bordering Bhutan and Bangladesh, thus experiencing a large influx of migrants. In this background, an NRC for the State was prepared in 1951 utilizing census data. However, that was not regularly maintained or updated. The Bangladeshi Liberation Movement had created political and identity upheaval in Assam, leading to the Illegal Migrants (Determination by Tribunal) Act – creating a separate tribunal process for identifying illegal migrants in Assam. Additionally, the Assam Accord was signed, by which specific cutoff dates for citizenship and voting rights were agreed upon. Assam as a State faced several political upheavals, leading to the signing of the Assam Accord. In 2005, however, the Supreme Court of India struck down the Illegal Migrants (Determination by Tribunal) Act, leading to a revival of the State NRC-mechanism.
Subsequent State Governments, however, failed to update the NRC, leading to a petition in the Supreme Court in 2009, and a Court-facilitated procedure for the updating of the Register, which required individuals in Assam, or of Assamese origin to trace their lineage back to the National Register of Citizens prepared in 1951, or to any of the Assamese electoral rolls prepared till the midnight of the cutoff date [stipulated as 24 March, 1971 – the date of Bangladesh independence].
The Union Government has announced that it seeks to implement this National Register of Citizens across the nation, which would require all individuals to prove citizenship credentials to an appointed authority. While the Citizenship (Amendment) Act and the National Register of Citizens have come under criticism individually, it is their conjoined impact that is far more dangerous. Mixed in with the Hindu-based ideology underlying the governance of the ruling party (which has absolute majority in Parliament), these laws allow for the systematic exclusion of Muslims from attaining Indian citizenship.
With this background, we jump into what sort of international litigation may be feasible.
The International Court of Justice will have to be satisfied that it has jurisdiction over the matter.
The Court has jurisdiction over contentious cases and advisory opinions. An advisory opinion is legal advice provided to the United Nations or a specialized agency by the International Court of Justice, in accordance with Article 96 of the UN Charter. The General Assembly and the Security Council may request advisory opinions on “any legal matter”, while other organs and the specialized agencies may request advisory opinions on “legal questions arising within the scope of their activities”. It is nearly impossible to see any United Nations body or specialized agency seeking the intervention of the Court. This is largely because States, including Permanent Members of the Security Council, have indicated that they believe that the matter is entirely within India’s domestic jurisdiction, and will oppose any resolution requesting for an advisory opinion by the Court.
Any case will therefore have to involve the contentious jurisdiction of the Court, which can be invoked either by way of special agreement, or through treaties/conventions (in terms of a compromissory clause), or by way of a declaration recognizing the compulsory jurisdiction of the Court (optional clause declarations).
A special agreement requires the consent of both parties, and is unlikely to be reached, as India will be averse to litigating this matter. The multilateral human rights treaties signed by States do not provide for the jurisdiction of the Court, and where they do, India has not signed or ratified those instruments. This would lead any State to invoke India’s optional clause declaration.
The declaration that India submitted to the Court included the following reservations:
(1) disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement;
(2) disputes with the government of any State which is or has been a Member of the Commonwealth of Nations;
(3) disputes in regard to matters which are essentially within the domestic jurisdiction of the Republic of India;
(4) disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, fulfilment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved;
(5) disputes with regard to which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than 12 months prior to the filing of the application bringing the dispute before the Court;
(6) disputes where the jurisdiction of the Court is or may be founded on the basis of a treaty concluded under the auspices of the League of Nations, unless the Government of India specially agree to jurisdiction in each case;
(7) disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction;
(8) disputes with the Government of any State with which, on the date of an application to bring a dispute before the Court, the Government of India has no diplomatic relations or which has not been recognized by the Government of India;
(9) disputes with non-sovereign States or territories;
(10) disputes with India concerning or relating to: (a) the status of its territory or the modification or delimitation of its frontiers or any other matter concerning boundaries; (b) the territorial sea, the continental shelf and the margins, the exclusive fishery zone, the exclusive economic zone, and other zones of national maritime jurisdiction including for the regulation and control of marine pollution and the conduct of scientific research by foreign vessels; (c) the condition and status of its islands, bays and gulfs and that of the bays and gulfs that for historical reasons belong to it; (d) the airspace superjacent to its land and maritime territory; and (e) the determination and delimitation of its maritime boundaries.
(11) disputes prior to the date of this declaration, including any dispute the foundations, reasons, facts, causes, origins, definitions, allegations or bases of which existed prior to this date, even if they are submitted or brought to the knowledge of the Court hereafter.
Any State seeking to take the matter of these laws to the International Court of Justice will have to do so after passing the hurdle of these jurisdictional reservations. This process is substantially easier if the State looking to take India to the Court is a non-Commonwealth nation [owing to reservation (2)]. Should the country be a Commonwealth nation, however, the Court will have an opportunity to re-examine the legality of reservations which exclude disputes with individual member nations, or groups thereof, which we have previously examined on this blog here.
In either case though, two jurisdictional hurdles will remain. India’s reservations require that all States to a multilateral treaty be present before the Court where the dispute concerns the interpretation and application of that treaty, except where it provides special agreement otherwise. Obtaining that special agreement is likely to be a challenge. As will be examined below, however, it is entirely possible for this case to proceed to the Court without the question of treaty-based obligations.
Finally, India may seek to argue that this matter is “essentially” within its domestic jurisdiction. Unlike the United States’ reservation, this is not a self-judging reservation, thus preventing issues of invalidation of the declaration from arising.
India’s argument may find itself on the fact that there exists judicial and administrative recourse, in addition to appeal procedures and regulations in respect of both the NRC and the CAA in the territory of India. It may also argue that citizenship is entirely a question of domestic State affairs, specifically because States are, within their sovereign power, entitled to make regulations and provisions as to its determination. These powers, though limited by instruments of international law, do not take away State sovereignty over the matter, underscoring domestic jurisdiction.
India’s ministers have previously claimed that Western standards of human rights are not applicable in the Republic of India, and cannot be applied indeterminately. Thus, it is not impossible to rule out an Indian argument that human rights also fall squarely within the purview of domestic jurisdiction, given that they are regulated by the Constitution of India and other legislation.
The first claim is easily refutable. This hypothetical case does not exclusively involve questions of citizenship. It rather involves questions of various human rights abuses taking place in the process of citizenship determination and in the face of dissent. This brings us to the second claim. The plea of “domestic jurisdiction”, where not self-judging, has in the past necessitated that the State making such a plea is able to prove that the subject-matter of the dispute is largely within the State’s domestic jurisdiction, having an “internal attachment” and is not regulated in large parts by international law. Where co-extensive subjects exist, it is clear that States, through their national legislation must give force to their international obligations. Thus, although domestic legislation enforces human rights, it will be improper for India to claim that human rights are “essentially” within its domestic jurisdiction – specifically because human rights law is a dynamic subject protected by international and national laws, allowing for recourse where domestic law fails to safeguard these rights.
This post will now proceed on the assumption that the Court has jurisdiction. The most convenient way for this to occur (a TL;DR of sorts), would be if the State was a non-Commonwealth state, without raising any of India’s treaty obligations we outline below.
Issues on Standing
Should the Court find that it has jurisdiction, it will have to examine whether the State in question has standing to appear in the matter. Standing essentially determines which parties can lay claim before a Court, by showing a connection with the dispute at hand in order to justify their participation in the case. Part III of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) lays out how those rules are implemented. They require that States invoking responsibility are either “injured” (Article 42), or satisfy the requirements under Article 48.
The threshold for “injury” under Article 42 requires the State appearing before the Court to prove that some form of injury has taken place. Given the nature of the claim, it is difficult to see what injury any State will be able to raise. There is an academic argument that a State will be able to show “injury” because an obligation it subscribes to has been breached, however, this appears to fall short of the kind of injury envisaged by the International Law Commission in the drafting of the Articles on State Responsibility. India’s neighbouring countries: particularly Bangladesh and Pakistan might be in a position to claim “injury”, but should they be the States arguing against India, the “Commonwealth” jurisdictional hurdle will prevent any resolution.
A stretch would be to examine a claim under Article 42(b)(ii) of the ARSIWA. If any State does raise that as the basis of standing, the Court would have to lay out jurisprudence on the distinction between the term “injured State” and “specially affected State” as used within that article, and whether or not those are distinct requirements which do not overlap. I believe this is an unlikely circumstance.
Any State is more likely to find its standing grounded within Article 48(1)(a) or Article 48(1)(b). These concern circumstances where the obligations breached are owed to a group of States, or to the international community as a whole. As will be discussed below, all human rights obligations which form a part of a potential claim on merits are either obligations erga omnes, or obligations erga omnes partes, satisfying the requirement under Article 48.
The Court, in Questions Relating to the Obligation to Prosecute or Extradite, found that Belgium had standing on the basis of obligations erga omnes partes, specifically in respect of the Convention Against Torture. However, obligations erga omnes can exist outside of treaties as well. The prohibition of torture, for example, has recently been recognized by the International Law Commission as a jus cogens norm and an obligation erga omnes, allowing for the invocation of standing on this basis.
We will examine standing in depth for each claim on merits, discussing how the obligation in question is one that is erga omnes or erga omnes partes.
Issues on Merits
Assuming these issues do not pose an impediment to the exercise of the Court’s jurisdiction, and the matter reaches the Merits phase, there are several issues that a State may choose to contend. I will explore these issues in three parts: (1) treaty-based obligations, (2) obligations which are jus cogens norms, and thus fall under erga omnes standing, (3) customary international law obligations having erga omnes character
As stated above, any case on the basis of treaty-based obligations is difficult to envisage. For hypothetical sakes’, therefore, this part assumes that India has agreed to litigate multilateral treaty-based claims as well. Should these take place, any State will be in a position to rely upon the following treaties, which crystallize rights discussed more in-depth below. These would be brought on the basis of erga omnes partes standing. Naturally, this part is brief – these are claims least likely to succeed.
Article 2 of the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights both guarantee non-discrimination, as outlined earlier. Article 26 of the ICCPR specifically affirms non-discrimination on the basis of religion. Finally, Article 19 of the ICCPR guarantees the right to expression, which, it has been agreed, includes the right to access the internet.
Article 5(c)(iii) of the International Convention on the Elimination of All Forms of Racial Discrimination calls for the prevention of racial discrimination in the matter of civil rights, including the right to nationality. Article 1(1) of that Convention lays out that “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. The Citizenship Amendment Act discriminates between individuals from other neighbouring States, including Sri Lanka and Nepal, who may face persecution and seek Indian citizenship and other nationals, without a reasonable basis for this discrimination. State responsibility may exist as a result, as outlined here.
Article 2(1) of the Convention Against Torture, to which India is a State party, requires that State Parties shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
Although India’s reservations make these treaties unhelpful on their own, their existence is suitable to locate customary international law obligations. The travaux preparatoires of these treaties also enable us to identify how a norm may be treated as an erga omnes obligation for the purposes of standing.
Jus cogens norms
Jus cogens norms, or peremptory norms of general international law are norms from which no derogation is permissible. This means that they are binding universally, across all circumstances, without exception. Norms possessing this character are so fundamental that they are considered to be obligations erga omnes. The International Law Commission’s Draft Conclusions on peremptory norms of international law list out illustrative norms of peremptory international law including the prohibition of torture. It is this norm we are concerned with here.
Article 1 of the Convention Against Torture contains a definition of torture:
“Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.“
A simplified definition would be as follows: the intentional infliction of severe mental or physical suffering by a public official, who is directly or indirectly involved for a specific purpose. There is no singular means by which torture can take place, and various intergovernmental organizations have focused on the phrase “cruel, degrading, and inhumane treatment” as being the yardstick of Governmental behavior constituting torture.
Arbitrary detention, for example, constitutes this cruel, degrading and inhumane punishment. Global jurisprudence also recognizes that detention for an indefinite period of time also falls squarely within this definition and the international standard for torture, something affirmed by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. In his 2018 Report to the Human Rights Council, the Special Rapporteur notes that States’ policies on migration-based detention require special attention owing to their “deprivation of liberty”. He states that this would take place where a detained individual does not have a practicable or available opportunity to exercise his freedom to leave [through mechanisms such as bail]. Finally, the Special Rapporteur speaks of conditions in these detention camps, and how cruel, degrading and inhumane treatment may be inflicted upon detainees by police officials denying detainees basic human rights such as access to food and water, leading to severe mental and physical anguish, including death.
The policy put in place by the Union Government under the amended Citizenship Act coupled with the National Register for Citizens seeks to detain individuals identified as illegal migrants in specially constructed, confined detention camps till deportation, an indefinite period of time. This policy clearly constitutes torture, which is impermissible as outlined above.
Finally, evidence has recently emerged of deaths occurring in these detention camps. While the Government has assured individuals that these deaths occurred owing to illness, and not “pressure or fear”, fresh data is emerging each day – as no independent investigations have taken place as yet. States monitoring the issue ought to keep track of reporting being carried out, for it is not improbable that detention in degrading circumstances has led to deaths. Something that ought to be noted at this juncture is that this is not exclusively the fault of the Executive, but also of the judiciary in India, which ordered the construction of these mass detention camps.
Customary international law
There are a variety of obligations India owes under customary international law that a State may seek to litigate: (1) the prohibition against discrimination, (2) the obligation of non-refoulement, (3) the obligation to protect the freedom of speech and the right to access the internet. These will be addressed in turn.
The prohibition against discrimination is recognized as a customary international law obligation. More specifically, the prohibition against religion-based discrimination is a customary international law obligation arguably having erga omnes character. There is evidence of opinio juris in this respect, insofar as States have consistently recognized equality and freedom from religious discrimination as basic human rights. The Universal Declaration on Human Rights recognizes this in Article 7, and specific treaties such as the International Covenant on Civil and Political Rights (Article 2 and 26), the International Covenant on Economic, Social and Cultural Rights (Article 2), and the International Convention on the Elimination of All Forms of Racial Discrimination(Article 5) reinforce this belief.
Examining State practice in this regard, we can see a general and consistent practice emerge. States, including India, do, within their foundational legal texts or by force of Statute recognize a prohibition on religious-based discrimination. A few examples of States with this prohibition include South Africa and Canada.
Its erga omnes character deserves further explanation. In the past, the Court has ruled that some international obligations entered into by States are obligations erga omnes. These decisions provide a useful basis to examine what factors the Court looks into in deciding on whether an obligation has erga omnes character. In Barcelona Tractions, the Court held that these obligations are “the concern of every State”. In the East Timor case, the Court relied on the evolution of self-determination from the Charter of the United Nations and United Nations practice, looking specifically at General Assembly resolutions adopted with universal consensus. In the Nuclear Weapons Advisory Opinion, the Court stated that “a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity'”, that they have erga omnes character.
The Court found that these rules had erga omnes character because of how fundamental these precepts are to the human person, and how consistently and universally States had accepted and ratified their importance. The argument for the prohibition of genocide, and its recognition as a jus cogens norm having erga omnes character stems from how morally incomprehensible the denial of a right of existence of entire human groups and the discrimination between human groups that ensues is. This was the basis of the Inter-American Courts‘ recognition of non-discrimination as being a jus cogens norm. In fact, the protection from racial discrimination is identified by the International Court of Justice as being an erga omnes obligation, paving the path for its prohibition and non-derogability.
It is clear that the Citizenship Amendment Act discriminates against Muslim illegal migrants from Afghanistan, Bangladesh and Pakistan, denying them the opportunity to gain citizenship in India – an opportunity provided to non-Muslims who are illegal migrants from these nations. This falls foul of India’s obligation under customary international law not to discriminate on the basis of religion.
The text of the Citizenship Amendment Act shows that the legislation seeks to deal with persecuted minorities who are migrants. Thus, the second aspect of customary international law that deserves examination is how this fall short of India’s obligations towards migrants generally.
In 1951, States adopted the Convention Relating to the Status of Refugees (the Refugee Convention), and amended the same by adding the 1967 Refugee Protocol. These instruments, which are ratified by 145 States, are the global framework for refugee protection. As India is not a State party to either the Convention, or the Protocol, it is fitting that obligations contained therein are examined under the lens of customary international law.
The definition of “refugee” contained in the Refugee Convention crystallized the customary international law definition of the phrase. It states, within Article 2, that a refugee means any person who owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, flees his country seeking protection in another. Article 33(1) of the Refugee Convention contains an expression of the principle of non-refoulement, which prohibits a country from returning refugees to countries where they face a clear threat of persecution on account of race, religion, nationality, political opinion, among others. The Convention itself permits derogation where a refugee is a threat to national security, or where the criminal nature and record of a refugee is a danger to the community in the host state.
This principle of non-refoulment has attained customary international law status with an erga omnes character. There is widespread evidence of State practice in this regard, including where States have responded to UNHCR’s representations by providing explanations or justifications of cases of actual or intended refoulement, thus implicitly confirming their acceptance of the principle. The existence of opinio juris is evidenced by universal acceptance in conclusions of the UNHCR Executive Committee and in resolutions adopted by the United Nations General Assembly.
However, the Citizenship Act, as amended, contravenes this legal obligation. This is because Muslims who enter the country from Afghanistan, Bangladesh, and Pakistan, irrespective of what reason they are persecuted for in their home country, would be classified as illegal migrants. They would then be subject to the Foreigners Act, which allows for detention and deportation back to their home country. This makes deportation of persecuted individuals back to their home country an explicitly legal process according to domestic law. The argument against this: that it will not happen, and that it is an unlikely reality, is specifically unconvincing owing to India’s recent deportation of Rohingya Muslims back to Myanmar. The law in itself is sufficient, therefore, to be classified as violating India’s obligations to ensure non-refoulement under international law.
The Government has defended the law’s introduction on the basis of how easily it allows individuals persecuted in geographically neighbouring countries to gain citizenship in India. This is flawed, for it appears to be premised on the belief that it is only religion which can be the basis of persecution in these neighbouring States, but additionally, that the Muslim community is not in the minority in any of these States – thus being safe from persecution.
Finally, there is a need to address the Indian response to the protests. The protests have led to the imposition of curfew orders across several cities, including communications blockades and internet shutdowns in furtherance of Governmental orders. International law recognizes the right to access the internet as a right guaranteed under customary international law, something we have discussed earlier here. States are entitled to restrict these rights in order to protect national security and public order. However, the scope and manner of restrictions on internet communication in India have been disproportionate to those necessary to combat issues of public order (assuming they existed).
There is evidence available of a flagrant violation of international human rights law that is attributable to the Indian Government. There is evidence to show that this is an act having a continuous character: for even if the acts have taken place already, the effects of these acts will continue to violate international law.
The reparations that can be sought as a result are manifold, but should primarily be in the form of provisional measures – to prevent the continuing character of these acts, and restitution: to repeal the law and set aside the policies that allow for this discrimination to take place. Alternate remedies that should be sought may be in the form of satisfaction: a recognition that this will not occur in the future.
Should the Court’s jurisdiction be adequately seized, the Court will be provided with an additional opportunity to act as a bastion for human rights – a role it is currently attempting to fulfill in the case against Myanmar. The easiest manner for this to occur is for a non-Commonwealth State to raise India’s obligations in international law, outside of treaties and outside of any instruments. These would be appeals to India’s fundamental, moral obligations under public international law. It is unfortunate that we cannot turn to Gambia, whose Commonwealth status will impede resolution. Perhaps another Gambia will emerge, for whom a blueprint is, as evident, ready.