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International Law

Great World Powers Should Not Remain Oblivious Of Internal Corruption of Other Nations

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[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] I [/yt_dropcap]n a vain attempt to streamline global new world order governance, it is sometimes very tempting for “macro” world leaders to simply implement domestic and global policies which completely steam roll over the rights of their individual citizens, for purposes of ease of control and rule, rather than taking the time out to deal with, and rectify, the multiple internecine conflicts, fundamental denials of human and civil rights, race/religious/ethnic tensions, and the rampant injustices which plague their people.

This type of behavior is the mark of a lazy world leader, and their best defense from outside scrutiny and criticism of the methods they use to quash their own people’s hopes and dreams is by knee-jerk declaring that they are protected from outside scrutiny by the doctrine of “sovereign immunity,” which is an international law concept declaring that a country has the absolute right to monitor and control their own internal domestic policies and procedures, without outside influence and interference from other sovereign nations.

However, what happens when that small handful of influential, powerful, and wealthy global world leaders are business partners, friends, cronies, or connected to those other equally culpable world leaders?

How is that 5 or 6 global world leaders with any degree of power and wealth, can stifle and crush the hopes and dreams of the 8 billion people in the world?

The disappointments, human and civil liberties tramplings, and the deeply ingrained and systemic corruption, endemic within much of the world’s countries, is not something to simply brush aside and coverup, under the guise of smooth global governance and streamlining, and must be closely monitored by other nations.

In this vein, once again, the United Nations must do its job.

At least within the United Nations, there are 193 member nations which all have leaders who can actually do something about these issues.

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International Law

Syrian Refugee Crisis: A Critical Analysis Concerning International Law

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Women and children at the the Turkey-Greece border at Pazarkule. © IOM/Uygar Emrah Özesen

The contemporary refugee law is primarily a product of the 20th century following the Second World War and the subsequent post-war refugee crises. The 1951 Refugee Convention on the Status of Refugees and its 1967 Additional Protocol are the noteworthy legal regimes. Although the definition of Convention 1951 continues to be the dominant definition, the regional treaties on human rights have continuously amended the definition in retort to changing circumstances and crises. The gap in the convention of 1951 is that it does not extensively define how the state parties must decide if a person shall compile with the definition of the refugee. The main objective of the modern refugee regime is that; at national and regional level, the individuals that flee their country due to threat of persecution must be protected under all circumstances.

The Civil War in Syria has lead many Syrians flee their own homeland where millions have fled and many have been internally displaced. Many of these existing refugee groups, if not most, live in desperation implying that refugees’ assistance and protection needs be addressed in host countries. States bear moral and ethical obligation towards ensuring the safety and protection of the individuals fleeing Syria. Western countries have also undermined and jeopardized their international commitment of protecting refugees’ human rights. The Regional Response Plan 2014 of United Nations High Commissioner for Refugees (UNHCR) is a $4.2 billion aid program for Syria. The plan mainly focuses on the financial assistance of the countries hosting Syrian refugees; where this assistance is certainly important; it does not seem to be an approach more equitable to share responsibility for refugees. The refugee convention and legal framework under International Law may be helpful in dealing with swift management of ongoing Syrian crisis. The study recommends for a larger responsibility to preserve refugees’ human rights and provide long term solutions through international law regimes with proper implementation mechanism.

REFUGEES

Under the International refugee law, Article 1(A)(2) of the 1951 Convention states that

“The term ‘refugee’ applies to any person who is outside the country of his nationality, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and is consequently unable or unwilling to avail himself of the protection of that country.”

As it was in the context of European Refugees escaping persecution prior to January 1, 1951, the concept had geographical and chronological constraints. Article (1)2 of the 1967 Protocol on Refugee Status abolished those temporal and geographical constraints.

PRINCIPLE OF NON-REFOULMENT AND FREEDOM OF MOVEMENT UNDER THE 1951 CONVENTION

Non-Refoulement on the whole mean non-return: it is not doable for individuals or foreign nationals to be returned by the host State to the country or place where they could be tormented, tortured or treated inhumanly and degradingly, in addition; where their life, liberty and freedom is threatened. The non-refoulement principle is the fundamental pillar of international law on refugees. It is an inherent component of 1951 Convention as regarded as a Customary International Law applied on every State irrespective of their ratification of the convention.

Article 26 of the Convention of 1951 states that the host States shall allow refugees to choose and move freely where they have taken refuge. Article 28 states that they must be provided with legal documents that would permit them to move freely anywhere wound their country of residence. The Freedom of movement is very important particularly in countries that host huge influx of refugees and have confined them in a particular area or refugee camps and have posed restrictions on their basic rights. The 1951 Convention also protects much other refugee rights for example educational rights, right of employment, justice and property rights.

The rights however are protected under the 1951 Convention and other International Treaties on the rights of refugees and more broadly the Human Rights but the refuges in their host countries are denied of their these basic rights and are often regarded as a national security risks to the state.

BACKGROUND OF THE SYRIAN REFUGEE CRISIS

Syria’s civil war has its origins in colonialism and the Iraqi War. The ethnic tensions and ongoing civil crisis date back to 2000 elections when Bashar Al Assad came in to power and the rising of Islamic State of Iraq and Syria (ISIS). Pro-democracy uprisings erupted in 2011 in response to persecution that were occurring in the Assad’s regime; the uprisings turned into a civil war. Syria by 2012 was entirely engulfed in that civil war and many had died by the end of 2015 by their own government. ISIS was part of the rebel forces, which created an atmosphere of terror. Civilians were subjected to transgressions; public executions and amputations became rampant. Religious minorities were also under great threat. In August 2013, a chemical warfare inflicted on its own people; as a result millions of Syrians were forced to flee their homeland and take hostage in the neighboring countries. Majority of them around 90% fled to Turkey, Jordan and Lebanon (neighboring countries) and around 10% made their way to Europe. While million fled the country, many thousands other are internally displaced and are still under great sufferings. According to a report of UN, approximately 70% of the Syrian population lacks basic necessities i.e., access to safe drinking water, extreme poverty and many children do not even go to school.

RECEIVING COUNTRIES AND THEIR COURSE OF ACTION

Despite their dire situation, Europe is hostile to Syrian refugees. They have put restrictions on their freedom of movement curtailing their rights granted by the international legal regimes and conventions. In Turkey, the refugees are often detained by the authorities and are forced to leave the country.  The Turkish authorities had flagrantly violated international laws; refugees are regarded as a security risk.  The ongoing conflict and instability in Syria have exacerbated the situation, forcing people to flee their homes and seek refuge in neighboring countries.

The existing literature includes number of records of International laws and the rights and obligations on refugees as well the host states but focus has been laid upon the crisis rather than the management of the crisis. In case of Syrian refugees, the existing literature highlights the historical context and ongoing situation of the crisis but has been unable to come to its solution with the help of International laws.

CONCLUSION

The 1951 Refugee Convention states that states should facilitate refugees’ naturalisation and assimilation to the greatest extent possible. States are obliged to provide legal documents to the refugees for the purpose of seeking asylum and obtaining the official status of refugees. The Refugee Convention seeks to require that the refugees must receive same public assistance as that of the nationals of the country and must be provided with financial assistance, property rights, and right of education and employment.  Both the 1951 Refugee Convention and the 1967 Additional Protocol are international treaties that mean they are binding on the signatories however the treatment of refugees and asylum seekers are considered to be a part of customary international law that is that the states that have not signed or ratified the conventions must also protect these rights of refugees. In the Syrian refugee crisis, many states have avoided their responsibilities and violated international laws relating to refugees by barring refugees from entering their respective territories and by claiming that the state has no jurisdiction over them by choosing the non-entrée approach keeping them apart of refugee law technically. However, in practice they do not meet the duties of the treaty.

To conclude, the essence of the research is that Burden Sharing is an as an intrinsic component of the refugee protection legal system framework and is critical and important in resolving the Syrian refugee crisis. Burden sharing is basically the distribution of responsibilities. In simple words it refers that specific arrangements must be made for the purpose of physical distribution of refugees. It is one of the main principles of International Refugee Regime. The documented origin of burden-sharing can be found in the preamble of the 1951 Convention. When addressing the Syrian refugee crisis in terms of international laws relating to refugees, it is pertinent to know that the existing legal frameworks in the countries hosting huge influx of the refugee crises do not incorporate many of the basic obligations of international law in relation to the rights and obligations of refugees, because none of these countries i.e., Turkey, Lebanon, or Jordan have ratified the 1951 Refugee Convention and the 1967 Additional Protocol. Syrian refugees have many rights that have been granted to them by the international conventions however, they are denied of their rights. This has made them vulnerable and entirely dependent on the financial aids and has increased illegal means of employment. The refugees are marginalized minorities who are facing troubles in integrating in the receiving countries.

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International Law

What have we learnt in the past century?

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It is 100 years since we were supposedly getting over the war to end all wars, World War I, and forming the League of Nations with the purpose of preventing such a conflict and slaughter happening again. Regrettably, the only good that came out of it was the proposal to form the League of Nations; it was not much more than an idea though otherwise stillborn and we needed another World War before something solid resulted, the United Nations with some teeth, although they need sharpening. It was the time that the Chinese Communist party was formed and has just celebrated its centenary. What have we done in the time, apart from multiplying ourselves by a factor of 3, and perhaps upsetting the planet on the way. There are exciting scientific advances, of course, some of which we must use to address the wasteful manner in which we live.

The 1920s and 1930s were times of turmoil, new ideas. Socialism in the forms of nationalism and communism, each with an end result of forming a ruling elite, who would brook little or no interference from their perceived mission. The damage from WWI caused a Depression in the developed world, many of them democratic in form, and this meant they paid not or were not able to pay enough attention to the looming Nazi power growing in Germany. In China, the communist movement was putting down roots, establishing itself and, in the Far East the colonies of British India and the Dutch East Indies, the elite of those nations were listening with sympathy to the socialism that was being preached in Europe.

The end of WWII saw the proponents of each doctrine, social/communism and free market capitalism/democracy sharpen their dividing lines which led to the Cold War between east and west. However, this is too simplistic; Britain, for example, after WWII voted in a Socialist Labour government, which promptly set about nationalising key industries and created the National Health Service, all the basics of socialism, central government control. The key industries didn’t prosper, lacking accountability and arguably fleetness of the free market and in time, after Thatcher, were returned to the private sector. This was not entirely successful as times changed, but the National Health Service has been deemed a success in the overall scheme of things, looking after a nation’s health. Perhaps it was different because it only required a social accountability.

Returning to the division of doctrine, emerging from WWII, this saw the sharp divide of Europe between, on the one hand the Lenin/Stalin communist, centrally controlled regimes of the USSR which had gathered within their scope, whether they liked it or not, many of the countries of Eastern Europe. On the other hand, there were the democracies of Western Europe, which were bolstered by the USA. Germany was divided into two parts but Berlin, the capital, which lay in the Soviet jurisdiction, was a separate entity managed by the four allies who had together opposed the Nazis, namely the USA, the USSR, Britain and France. This arrangement continued, not without its problems, until the new president, Kennedy, in 1961 made a declaration against communism which alarmed Kruschev, the Soviet leader by now since Stalin had died. A Wall was put up by East Germany/ USSR in Berlin in 1961, which became a symbol of the freedom of the west against the restrictions that the Soviet Union enforced. The East German communist government was alarmed at the very large number of their skilled citizens who were defecting to the west; the Wall brought the number down to a trickle, lasting until 1989 by when times had changed.

In the East, China at war end was in the grip of a communist movement that was fighting to overcome the nationalist forces of Chiang Kai Chek. The communists prevailed and the nationalists departed for the island of Formosa, today Taiwan, taking with them the Emperor’s ancient, valuable signatures of office, a bone of contention. Meanwhile, Japan was healing from the bitter defeat inflicted on it from WWII with the help of the USA and was showing its resilience in recovery towards becoming one of the fastest growing economies.

The first test of the new communist China came in the early 1950s in the Korean peninsula, where they wholeheartedly backed the forces of North Korea in their fight against the armies of the south, backed by the USA and its Allies from the western democracies, including Australia. A truce was signed after a few years of hard fighting, with no side obviously prevailing, and Korea was divided between North and South. To this day they have entirely different styles of government, the communist north being dependent on China with the people languishing in poverty while their ruling elite are well off, and the South being one of the Asian ‘tigers’ and one of the most successful democratic economies. The difference is glaring.

The next conflict between communism and a semi pro-democratic form of government, the Vietnam War in the 1960s, had different origins. It was originally part of an anti-colonial struggle to depose the French from their Indo-China possession, which also included Laos and Cambodia. The defining moment came when the French forces were beaten by the N. Vietnamese at Dien Bien Phu in 1954, which was a signal for the French to withdraw. The North Vietnamese government was led by Ho Chi Minh, who had also studied communism in Europe and been persuaded by its ideas.

The American government had been watching closely and were very worried that if all of Vietnam were to fall to communism, it would lead to the rest of Southeast Asia in time succumbing also. As the leader of the ‘free’ world the USA stepped in and gradually increased its presence to the point that it was perceived as full-scale war. The North Vietnamese devised a way in which they could frustrate the American troops by building a network of underground tunnels from which they could appear unexpectedly and avoid direct confrontation with the better armed American troops. The war did not seem to have an end, and either it had to be escalated or the troops withdrawn. The former route would require going to Congress in Washington and, since the war was becoming increasingly unpopular with the public this was not something that the US government would want to do. The Nixon government of the early 1970s decided on a strategic withdrawal and so the whole of Vietnam was taken over by the communist government of the north, the condition which the US had feared. But times had changed. The world was changing. Some countries were prospering and trading. The old communist guard was getting on, some dying.

In the meantime, India and Indonesia, each with current large populations and significant colonial histories, had leaders who had learned in Europe about socialism/communism. However, the countries they would be serving had large other complex problems to resolve. In India’s case they had to deal with its partition with a mainly Islamic country, Pakistan, on each flank. The Nehru led, mainly Hindu, faction had much sympathy with socialism and were suspicious of the west and western aid agencies such as the World Bank, which were not allowed in to help develop the country. India, for the rest of the century, moved slowly but did not make a move to either communism or the western democracies, perhaps because it inherited a system in which much power rested within the state governments. The national or federal government operated from Delhi in the form that the British left behind.

Indonesia spent the first few years from independence in 1947, establishing itself as a whole. Soekarno, the first president, was a gifted orator, and was a firm believer in socialism/communism, but was a poor administrator. The country had to fend off two break away actions in the 1950s in North Sulawesi and West Sumatra provinces, which were put down with some ferocity. An interesting development was Soekarno’s leading with the 1955 Non- aligned Movement which was held in Bandung. This firmly put him in the neutral camp, although his time in Europe had imbued him with left leanings. His inability to take the country out of poverty was greatly frustrating the political elite in Jakarta and when he was deemed to show his leanings towards communism, the Army with the elite had had enough. He had to go and forcibly resigned, bringing Soeharto to power. The USA, who had watched the moves carefully while, at the same time, being involved in Vietnam, were much relieved.

Soeharto made it clear that he had no liking for a communist form of government. He was also quick to realise that he needed the brains from the private sector to handle the economy. He appointed the Berkeley ‘mafia’, UC Berkeley trained economists to deal with the major problems of food, water and education to lift the country out of poverty which they did very successfully for thirty years. The country was run as a benign autocracy with a guided parliament which re-elected Soeharto every 4 years, until the Asian Financial Crisis struck and caused him to step down. However, well by then it was aligned with the western powers and was invited to join the G-17, the organisation of the world’s richest economies.

It should be added that the grouping of Southeast Asian nations – region that my colleague prof. Anis H. Bajrektarevic calls “the most multilateralised portion of Asia – Asia’s hope” – as the formed an alliance, ASEAN, in August 1967, to establish itself as an independent bloc, headquartered in Jakarta. Currently, there are now 10 countries in the bloc, originally five, with widely differing forms of government.

Come the latter part of the last century, other feuds, some centuries old, reared up to cause some alarm. They were not ostensibly part of the main struggle between rigid rules, centrally controlled communist regimes and the free market western economies, but the one of the Middle East involving several differing elements, on the face of it based on Judaism and its three offset branches, Jewry, Christianity and Islam. On his occasion the struggle had some of its roots in the Balfour declaration of 1917, endorsed in 1926 at a commonwealth conference, and the contrary non-acceptance of Israel after WWII, as a homeland for the Jewish people, by the Palestinians. It has widened out in a determination by a right-wing Islamic fundamentalist group to form a purely Islamic country, a caliphate. It fed off old rivalries and brought differing factions into conflict. It is not settled to this day, and Syria, a land of ancient civilizations, has been torn apart with a refugee crisis that has caused much discomfit in Europe. The politics of the Middle East are very complicated, variations of squabbles centuries old, and possibly unresolvable at this time. They, however, don’t seem to directly affect the main thrust of the proponents of the secular division between the democratic approach and communism to government. Although both the USA and Russia have an involvement, it is not their most important issue, although takes up time.

There are other disruptions in Africa and South America, but not greatly affecting the outcome of the main struggle between left and right. In much of Africa, where colonial power had held sway for many years and where a huge number of slaves had been shipped across the Atlantic to support the American and Caribbean plantations, little had been done to prepare the indigenous peoples to govern themselves. The extractive industries that were put in to take out minerals needed in Europe had systems in place which were devised to ship out the minerals to the controlling country. There was little or no attempt to better the country, in terms of education, infrastructure and skills development, where the extraction had taken place. The result was that the elite of the country, gaining independence, carried on the way things had been before independence and became hugely rich, while the poor just became poorer and poorer. A terrible legacy of colonialism! And certain countries in the north have, in the past few years, been severely affected by fundamental Islamic factions.

In the case of South (Latin) America, we have a mix of countries and the way they are run, significantly influenced by their Spanish or Portuguese legacy. The main problem is the growing and manufacture and the export of drugs and the emigration of people to the USA to get away from poverty. There is no major war ongoing although there have been attempts by some internal factions to take over a specific country for personal gain, which meets with the people’s resistance.

However, China is a large country with a centrally controlled communist regime in charge. In the past 30-40 years, with the passing of Mao Tse Tung and the accession of Deng the strict rigidity of the rules of government were eased and the economy started to grow. As a result, their economy has grown steadily, if not spectacularly at times, albeit from a comparatively low base and is now one of the largest in the world. They are not averse to taking new ideas from the west, sometimes openly but other times by stealth, which is of considerable concern to the west, which have established the norms, rules and rights of business. There was hope in the 1980s that they were changing and welcoming some democratic freedoms, but this altered in 1989 when a student demonstration was brutally quashed at Tienmanman square. The leaders had taken fright, things were getting out of control, and freedoms had to be curtailed and brought back under control. This was also a warning to the western democracies; there was only one way to do business in China and that was the Chinese way.

In 1997, the lease that the UK government held over the territories that encompassed Hong Kong was coming to an end and the territories were due to be handed back. There was some discussion on trying to extend the lease but this was really a non-starter. One of the terms that the British extracted in the departure agreement was that for the first 50 years the conditions which had been set up for the citizens of Hong Kong would be honoured. China agreed to approve the idea of ‘’one country and two systems’’. However, in recent times with Comrade Xi Jaoping feeling that his and the Chinese government’s power is on the increase he could ignore the agreement. There have been unsettling very large demonstrations in Hong Kong as Beijing turns the screw on democratic freedoms, and Hong Kong is brought in line with direct central government policy.

Furthermore, the government is trying to bring the Uighur people, who are of Islamic faith and live in Xinjiang to the west of China, the largest province, into line by brainwashing them. The Uighurs have  been treated to genocide, and are also used, not much better than slaves, to pick Xinjiang cotton, which is a significant and high quality product of this region. This is another worrying example of communist control, as George Orwell highlighted in his book entitled 1984. The UN and the American government have raised the issue strongly, but have been told it is a matter of terrorism!

In the past two decades or so the Chinese have ‘made’ small islands in the South China sea expanding their territorial waters illegally. The ASEAN countries have wakened up to this and showing signs of alarm as China are using these islands as military outposts. In short, they are testing the reaction of the Eastern ASEAN countries, who realistically are not strong enough to resist.  The USA are aware of this and watching carefully. It is still China’s government’s aim that Taiwan, R.O.C., comes under Beijing control.

The Chinese government would appear to have a policy to ensure that the country has the ability to widen its borders and, further afield, to secure by whatever means is most suitable the resources that the mother country requires. This would put it in a very strong position among all nations and supersede the work of past dynasties, justifying its central control. A communist Empire.

The other main country which espouses communism as per Leninism is, of course, Russia, which has always vied with the democracies of the west, unlike China which was rather left on its own, distance being a factor, until recent decades. After Kruschev, in the 1980s there was a time for a modicum of ‘honesty’ from the Russian government. They could not keep up with the economy of the USA with which they were attempting to compete. They released their hold on several European countries, such as Poland, Czechoslovakia and Hungary, and withdrew their border to a north-south line bordering Belarus and Ukraine, Estonia and Latvia and into the Black Sea. They retained a small piece of territory next to Lithuania which gives them a better outlet to the Baltic Sea and recently they took the Crimea illegally to secure a position in the Black Sea.

A few of the ‘freed’ countries have adjusted themselves in the years that have followed, for instance the peoples of Czechoslovakia decided to split along nationalistic lines into the Czech Republic and Slovakia. One has to draw attention to the former Yugoslavia, formed as a country of the southern Slavs, which was not part of the Soviet hegemony, which separated somewhat bloodily into its discrete parts, with the demise of Tito. This was the strongman who emerged from WWII and kept the disparate parts of Yugoslavia together and prevented the Soviets from adding it to the total taken. The countries that evolved from Yugoslavia were Serbia, Croatia, Bosnia Herzegovina and Kosovo.

The European Union has greatly enlarged since these countries became independent, could exercise their freewill, and confirmed their willingness to join the EU after invitation. The bloc now adds up to 27 member states and the centre of gravity which was firmly in the west, has shifted eastward significantly.

Russia has to deal with a significant, admittedly rather unwieldy, EU, as well as the powerful alliance, NATO, The North Atlantic Treaty Organisation, which was set up at the end of WWII to protect the western democracies with the involvement of the USA from any potential aggression of the USSR. Since the partial rapprochement of Russia in its adjusted format, over the past 3 decades, there is much less pressure on NATO. It doesn’t stop Russia trying to meddle with the former countries of the Soviet on their borders. Belarus has a regime that is close to the Russians, not necessarily the will of the people, and Ukraine, while looking west towards the EU, has had to fend off Russian aggression in recent times in which they lost Crimea. In the complex Middle East situation Russia offers support to parties that are opposed to western supported ones, for example Assad’s Syria. But overall, Vladimir Putin’s Russia does not pose as much of a long-term threat as the apparent threat offered by China. There is, from the people themselves, a wish to open up the country. However, this can be expected to take some time; change will be slow.

To return to the east, ASEAN as a bloc, partly modelled on the EU, is still feeling its way. In recent times, the military coup occurring in Myanmar has taken ASEAN by surprise. Their offer to mediate has been firmly rejected at the ASEAN annual meeting. This was to be expected as the military have been involved in actions against some of the Myanmar people almost continuously since Independence and in recent years the military have exercised utmost savagery against the Rohingya people. The country is of great strategic value to China and hence the Myanmarese can rely on their backing. Its value, apart from Myanmar’s considerable resources, e.g. the Jade mines of Kachin province, a nice earner for the military elite, lies in the fact that Myanmar provides a gateway to the Indian Ocean and thence access to China’s significant resources in Africa, where they have been slowly entrenching themselves for the part of half a century.

Looking ahead

Taking note of President Xi’s recent upbeat speech at the Centenary of the Chinese Communist Party, it is clear that the government of China feels confident that they are now in a strong position to push on with expanding their strategic aims. These will be pushed ahead by fair means or foul, honestly or not, by stealth if need be. If anyone dares to oppose them will get a ‘’bash’’ on the head! It is a warning to the western Allies. ASEAN should be concerned about the South China Sea.

Russia, in the next phase, will want to not upset matters too much and be reasonably content to have matters stay as they are. A significant revenue for them is oil supply to the EU. They have a growing mood in the populace that wants more freedom. This will be difficult to resist.

The Middle East has rumbled on for centuries. A solution does not appear to be likely in the short term although the majority of people just want peace so that they may live with a feeling of security. They cannot reach this position because the leaders feel they have some God-given mission to achieve first. There are pockets relatively peaceful, e.g. The Emirates.  

 The Liberal democracies of the west have some internal voices of dissent, but at the moment their biggest problem is dealing with a refugee crisis caused by the Syrian mess, and the peoples coming from Africa running away from poverty. These are all heading for Europe. The other area where there is a significant problem is the southern USA where there is an unrelenting movement of peoples coming from Central and South America, trying to escape poverty and/or poor government.

The problem has become larger in the past half century; the population has tripled without our becoming aware. The CO2, not surprisingly, has also increased which has alarmed some scientists, and the two issues may be related, because we breathe out CO2 as well as significantly use up more resources some of which, in turn, generate CO2. We must remember, however, that carbon dioxide is a building block of life; below 150 ppm the world starts dying, both flora and fauna. The world, whatever political persuasion, communist or democratic, has to take notice of the climate issue which is to be highlighted at the COP26 conference in November this year. It is interesting that the leading countries espousing these opposite forms of government, China and USA, are responsible for 36% of the CO2 output of the world, each of them, so far, shy of taking a leadership role. Will we see much progress on this issue if they don’t take a leadership role?

The Future

Science, building on what came before, has achieved almost unbelievable advances in less than a century. One of the foremost of them was finding the properties of the silicon chip, which led to the computer, becoming commercially available from the 1960s and thereafter aiding all aspects of scientific endeavour. Now we are looking at the digital age, and on into quantum mechanics and artificial intelligence. We have broken the barriers of space and there is a veritable limitless opportunity to be explored.

On the other hand, there are many more of us, 8+ billion as against 3- billion in the 1960s and we haven’t yet resolved the problems of poverty, pollution and paucity of some of our key resources, such as water, or why we have an apparent climate crisis.  The problems have only become bigger, which means the millennial and subsequent generations who will be brought up with the new sciences from a young age will have plenty to do. What sort of government will they have dictated to them or will they resolve a better system that embraces the better points of each, so long as there is adequate freedom of action?  

The world is changing; almost two thirds of its population already live in Asia and there is a shift in the ethnic balance. The United Nations is more important than ever; it has disappointed in not getting involved in a positive and robust way in certain disputes where a form of genocide has taken place, but they are constrained by their remit. Perhaps it requires a change of location from NY to reflect the changing population distribution and a time to review their raison d’etre.  

The new generation have inherited a number of problems but, at the same time, they have the skills and tools to deal with them. One can but hope they do use them and with common sense.

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International Law

International Norms On Fair Hearing: The Case of US, UK and India

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Fair hearing and its elements have been a hotly contested issue in administrative law. The right to fair hearing has traditionally been an indispensable aspect of the rules of natural justice. Broadly, the right to a fair hearing contains of several elements including but not limited to the right to a free and fair public hearing, the right to an independent and impartial tribunal and the right to present at an oral hearing. However, while fair hearing norms originates in the Articles 14 and 21 of the constitution in India, USA and UK trace it back to the 5th Amendment of the US Constitution[1] and Section 6 of the European Convention on Human Rights[2] respectively. Thus, the elements of fair hearing in the United States of America, the United Kingdom and India differs owing to these constitutional variations. These differences then evolve owing to diverse judicial interpretations which are based on different factors including expense, time and the need to avoid unduly binding administrative law making.

Despite these differences, fair hearing remains an important requirement in the process of administrative adjudication and ensures that every person being affected by a decision is granted a hearing before he suffers detriment. Thus, it is important that fair hearing remains an internationally recognised civil right while leaving significant discretion to individual states to adopt different procedural norms for practical demand.

This paper aims to understand the elements of fair hearing in three jurisdictions, namely US, UK and India. Accordingly, it first briefly traces the origins of the concept of fair hearing in administrative law and then narrows it down to understanding the evolution of the right in the three countries. Second, the paper makes a detailed scrutiny of the different elements of fair hearing in US, UK and India, observing the similarities and the differences. This involves exploring the judgments and legislative norms laid down in the three countries in this regard. Lastly, it specifically examines the effectiveness of the Indian notion of fair hearing in addressing administrative issues and ponders over the need to borrow from US and UK jurisdictions in this regard.

It concludes by reemphasising the importance of the right to fair hearing and how the differences in the fair hearing frameworks of the three countries points to different administrative demands and patterns.

FAIR HEARING NORMS: ORIGIN AND EVOLUTION ACROSS NATIONS

The norms of natural justice were originally imposed in common law countries as minimum standards of fair decision making so as to ensure that bodies or persons ‘act judicially’. The natural justice norms were later differentiated into two rules: the rule against bias and the right to a fair hearing. However, while European nations focused more on non-procedural aspects such as jurisdiction and correct legal reasoning, the US Supreme Court insisted on understanding fair hearing norms as ‘the essence of the scheme of ordered liberty’[3]. This is difference is elaborated as follows-

The initial academic discussion on fair hearing in the US centred on due process norms. For instance, the courts in Crowell v. Benson[4] and Ohio Valley Water Co.[5] ensured that due process norms imposed traditional procedural restrictions as well as absolute limits on the powers of administrative bodies. On the other hand, the Human Rights Act 1998[6] in UK gives effect to the Article 6 of the European Convention on Human Rights which declares the norms for a fair hearing. The elements of fair hearing in UK originating from Article 6 of ECHR allow tribunals to have considerable discretion in conducting trials and admitting evidences. However, they are expected to uphold “natural justice” norms especially when taking decisions that directly affect the “legitimate expectations” of a government body[7].  

The Indian administrative law assumes audi alteram partem or the right not to be condemned unheard to be an essential constituent of natural justice norms. Accordingly, the right to fair hearing, although not explicitly legislated on, has been firmly grounded in Articles 14 and 21 of the Indian Constitution. Further, fair hearing norms involve several different rights recognised through various judicial precedents i.e. right to notice, right to present case and evidence, reasoned decision etc. The norms have also provided for certain exceptions in the administrative law which form legal grounds for avoiding the application of fair hearing norms. However, there is no straightjacket formula for its determination and it depends on the particular circumstances of an administrative law case[8].

Thus, it may be argued that the fair hearing norms of the three countries have had different origins thus different substantial outputs. For instance, while English and Indian laws do not have general due process requirements for all governmental action affecting private citizens, it is quite the contrary in the US law. Nonetheless, fair hearing maintains its universal applicability in ‘laying duty upon everyone who decides everything’. 

ELEMENTS OF FAIR HEARING IN US, UK & INDIA: VARIATIONS AND DIFFERENCES

Owing to different origins and administrative law advancements, the fair hearing norms of UK, US and India substantially differ from one another. For instance, the US norms demand that a party not only be given opportunity to present evidence, but allowed to know the claims of opposing party as well as meet them. Those who contest government claims in a quasi-judicial proceeding are expected to be informed of government proposals and heard on them before the final order[9]. Similarly, the US law does not guarantee a right to oral hearing under fair hearing norms and decides upon it on a case to case basis.

More importantly, the Constitution of the US, in its 5th Amendment, also does not guarantee a trial type hearing in every governmental infraction of private rights[10]. For these reasons, administrative bodies such as the Civil Rights Commission do not accord the right to confront or cross examine witnesses as they only serve as investigative bodies and make no adjudications.

The present norms on fair hearing in United Kingdom may be traced to the judgment in Ridge v. Baldwin[11] which abandoned analysing the administrative and adjudicatory roles of decision making bodies and turned to the precise content of the complainants’ rights. The judgment declared that the applicant in an administrative law case may rely on prior legitimate expectations that the law will fulfil in the absence of countervailing considerations. This expectation may arise out of any prior course of conduct by the executive bodies in regard to the applicant’s case. The adjudicatory body will then have to determine the exact content of the right through these legitimate expectations[12]. However, the ECHR which is the basis for the UK fair hearing norms lay down three participation principles that are to be necessarily complied with. These are the principle of respectful treatment, the ‘equality of arms’ norm and the adversarial principle.

In India, the concept of fair hearing is a fairly elastic one and may not be contained within any precise definition. Thus, there are no indispensable standards of reasonableness that have to be complied with except that the conscience of the court should be satisfied that the person who will be affected by a decision has had a fair chance of convincing the particular authority[13]. However, the Supreme Court of India has also clarified that the principles of natural justice demand that a minimum fair procedure be always followed. This minimum fair procedure is, however, for the court to determine based on the particular facts and circumstances of the case. Nonetheless, the court has through judgments such as Maneka Gandhi v. Union of India[14] espoused fairness jurisprudence in regard to the civil rights of a citizen. Accordingly, some liberal norms for fair hearing that the judiciary has laid down over the years include: decision maker to be above bias, need to state reasons etc.

The United Kingdom, the United States and India all fall in the category of commonwealth nations. However, their legal regimes and fair hearing notions are marked by wide differences. For instance, while the UK law focuses on a limited arena of the norms of natural justice, the US law is embedded in the concept of procedural due process[15]. However, while US makes use of the right to notice and right to be heard to further the basic constitutional guarantees of the protection of life, liberty and property, UK also uses the ‘margin of appreciation’ in ECHR norms to guarantee the same rights[16].

Further, the right to fair hearing in UK is expressly limited by several factors ranging from merits of a case to morals and national security. On the other hand, although there exist no identifiable limits on due process and fair hearing norms in US, the identified purposes of procedural due process and rule of law serve as implicit limits[17].

On a comparison between Britain and India, while Britain has experimented with a right based approach before returning to the basic principle of fairness as a core constituent of fair hearing issues, India has merely made sporadic attempts to disregard statutory stipulations in order to preserve fairness and natural justice procedures.

Additionally, the Indian Supreme Court has stated that the notwithstanding any finality clauses in any act, Articles 136 and 226 allow the judiciary to review a law for violation of natural justice norms[18]. This is in contrast with US law which excludes certain congressional norms from the purview of due process requirements and judicial review. The US also has relaxed norms for attracting fair hearing norms as compared to India. For instance, while the US law allows for its non-application only in non-immediate matters or during subjective applications of the act, the Indian Supreme Court has insisted that audi alteram partem may only be used only in the instances of the violation of liberty or property causing grave injustices[19].

Therefore, it may be conclusively argued that the laws on fair hearing in the US, UK and India are based on entirely different perceptions and have evolved accordingly, thus the vast differences.

INTERNATIONAL FAIR HEARING NORMS AND COMMON LAW TRADITIONS

Notwithstanding the differences between the fair hearing norms in the US, UK and India, there are startling similarities owing to their similar common law origins. The fair hearing norms in all the three countries have constantly strengthened and have expanded the substantive idea of fairness so as to achieve fairer outcomes. This is largely because of the natural law entitlements of individuals that common law traditions have endowed upon the masses. Further, all common law jurisdictions share social policy, tradition and elaborated analogies in various forms. Thus, the right of a man to be given fair opportunity to be heard on what has been alleged against him is a universal principle in all common law jurisdictions and hence, in all three countries, namely US, UK and India[20].

Similarly, common law countries as well as nations falling under the jurisdiction of ECHR i.e. UK, allow quasi-judicial agencies to not completely comply with all the norms of procedural fairness if the affected person has any recourse to a further hearing or appeal. On the question of exceptions to the natural justice norms too, UK and India both use similar factors of time, place and apprehended danger etc. to ascertain their application. However, all the applicable exceptions are merely circumstantial and not conclusive[21].

Further, another common law norm adopted by all the three countries is the requirement for adjudicating bodies to provide reasons for the decisions they make. In India, duty to provide reasons as a requirement of fair hearing norms, even in the absence of statutory provisions, is a judge-made law[22]. In UK, the section 12 of the Tribunals and Inquiries Act, 1946 requires them to provide with reasons only when the parties ask for them. However, there is now a judicial trend for transparency that mandates the administrative authorities to provide reasons in all circumstances[23]. Finally, in US too, Section 8(b) of the Administrative Procedure Act, 1946 mandates administrative agencies to give reasons for their decisions.

Another important similarity between the fair hearing norms is the principle of ‘one who decides must hear’. Accordingly, UK’s House of Lords in Arlidge[24], the Indian judiciary in Nageshwar Rao[25] and the US Supreme Court in Morgan v. United States[26] have made clear that the duty to decide a case cannot be performed by someone who has not heard the arguments or evidence. Thus, unless it unduly complicates administrative proceedings, one administrative body should decide a case from the beginning to the end in all the three countries.

Additionally, the principle of post decisional hearing has been considered to be an exception in all common law jurisdictions, especially US and India. The Indian Supreme Court in H. L. Trehan[27] has clarified that post decisional hearing should not subserve the norms of natural justice and it may only be used in exceptions such as deprivation of life and liberty etc. Similarly, in US, due process requires that fear hearing is ensured with promptitude. Thus, post decisional hearing is allowed only in the case of extreme violations of public interest of impracticability and emergency.

Most importantly, in all three countries, principles of natural justice and fair hearing norms are meant to supplement and not alter the law. They are an integral part of the concept of good governance norms and hence, any claim to exclude any particular administrative hearing from the purview of fair hearing norms imposes the burden to prove so on the one demanding such exclusion[28].

Thus, it may be concluded that the UK, US and India respect certain elements of fair hearing as absolutely essential and have incorporated them into the law in different forms. The three countries owe these similarities to their common law origins which have retained some traditions and practices for many centuries.

FAIR HEARING IN THE INDIAN LAW AND THE NEED FOR CHANGE

In India, there is no statutory enactment on the minimum procedures that administrative agencies have to comply with. The vigilance of the judiciary has thus, become the best safeguard for fair hearing and procedural fairness in extremely complicated administrative law cases. This is accompanied by constitutional provisions in Article 311 of the Indian Constitution that provides the right to hearing of a civil servant when he is removed, dismissed or reduction in rank. Accordingly, the person affected by the violation of his civil rights may use constitutional provisions or the concerned statue to argue principles of natural justice without invoking any prejudice or civil consequence. Further, the constitutional affirmation of the natural justice norms by the judiciary has ensured that they are read into every administrative case, subject to exclusions. As the Indian administrative law is largely judge-made, the exclusions to natural justice norms i.e. confidentiality, impracticability etc., have also been developed through judicial precedents only[29].

Additionally, Indian courts have made clear their stance on the effect of any administrative law decision made in violation of the rule of bias. The aggrieved individual or body has the opportunity to accept such decision and it may not be necessarily void. This acceptance of the bias will be deemed to have been done if the party has the conscious knowledge of such a bias[30].

This analysis makes it clear that the Indian administrative law has various elements of fair hearing that are unique to the nation in different ways. There are little determinable standards on what fair hearing constitutes and judiciary has preferred to use higher standards in cases of more serious consequences. However, all the fair hearing norms are designed to prevent authorities from doing injustice[31].

The above analysis indicates that the Indian administrative law has its separate and unique needs and the judicial precedents on fair hearings are comprehensive enough to adequately address them. However, the judiciary needs to ensure it keeps certain important principles on fair hearing in mind. For instance, the inherent human dignity of persons before the tribunals be respected, they be entitled to consult and represented by a legal representative and provided adequate opportunity to present their case, among others. 

CONCLUSION

The elements of fair hearing in the United Kingdom, the United States and India have originated and evolved according to the individual administrative needs of the three nations. For instance, while US law solely insists on due process norms based in the 5th amendment, the UK and Indian laws are equally focused on technical administrative requirements such as the legal eligibility of a body to listen a case. The Indian administrative law is in its infant stage and thus has witnessed the judiciary espousing hitherto unused natural justice norms. However, these fair hearing norms have also been borrowed from and are a combination of the common law traditions which encompasses the US and UK law.

The common law origins of the three countries’ fair hearing norms have ensured that these reverenced certain principles irrespective of jurisdictional constraints. Thus, there is a stark similarity between them in terms of the post decisional hearings, the deciding body and the need to provide with adequate reasons in relation to the decision rendered. This, in turn, has ensured a consistency in terms of the importance given to the fair hearing norms and the application of administrative law in the three nations.  

Thus, it may be argued that the fair hearing norms in the three countries are marked by many similarities. However, the different nature of the jurisdictions under which the authority is usually conferred to the administrative bodies in the three nations is varied, thus leading to many differences as well. Therefore, it is important that while they respect the common law traditions that have been a part of their legal cultures, the judiciary of the three nations should render administrative decisions while taking into account the character of the rights of the person affected. This will allow the administrative law in these nations to progress as well as retain its core elements.


[1] The Constitution of the United States, 5th Amendment

[2] European Convention on Human Rights, 1953

[3] T. Koompans, ‘Natural Justice Rediviva? The Right to a fair hearing in European Law’ (1992) 39(1) NILR < : http://journals.cambridge.org/abstract_S0165070X00035440> accessed 7 May 2021

[4] Ohio Bell Tel. Co. v. Public Utils Commn, 301 U.S. 292 (1937)

[5] 253 U.S. 287 (1920)

[6] Human Rights Act, 1998

[7] H Davis, ‘The Right to a Fair Hearing’ (Bournemouth 2014) < http://eprints.bournemouth.ac.uk/31096/3/Chapter_7_Beginning_Human_Rights_Law_Author%27s_Text%20%281%29.pdf> accessed 13 May 2021

[8] D.D. Basu, Commentary on the Constitution of India (9th ed., vol 1, LexisNexis India 2014)

[9] Morgan v. United States, 304 U.S. 1 (1938)

[10] Cafeteria & Restaurant Workers v. McElroy367 U.S. 886 (1961)

[11] Ridge v. Baldwin [1964] AC 40

[12] Swati Jhaweri, ‘Right to a fair hearing in administrative law cases’, The Max Planck Encyclopedia of Comparative Constitutional Law (Oct 2016) < : https://ssrn.com/abstract=3175734> accessed 10 May 2021

[13] Ibid 5

[14] Maneka Gandhi v. Union of India, (1978) 1 SCC 248

[15] Nathaniel Nathanson, ‘The Right to Fair Hearing in Indian, English and American Administrative Law’ (1959) 4(1) JILI <https://www.jstor.org/stable/43949624> accessed 10 May 2021

[16] Ola Johan Settem, Applications of the Fair Hearing Norm in ECHR Article 6(1) Proceedings, (Springer International Publishing Switzerland 2016)

[17] Edward Rubin, ‘Due Process and the Administrative State’ (1984) 72(6) CLR < https://heinonline.org/HOL/LandingPage?handle=hein.journals/calr72&div=50&id=&page=> accessed 2 May 2021

[18] Lydia Kerketta, ‘Audi Alteram Partem: The right to a fair hearing’ (Legal Services India) <http://www.legalservicesindia.com/article/1860/Audi-Alterem-Partem-Right-to-fair-hearing.html> accessed 14 May 2021

[19] Ibid 5

[20] Ibid 9

[21] Ibid 12

[22] M.J. Sivani v. State of Karnataka, (1995) 6 SCC 289

[23] S A de Smith, ‘The Right to a Hearing in English Administrative Law’ (1955) 68 Harv L Rev 569

[24] Local Government Board v. Arlidge [1915] AC 120 [HL]

[25] Gullapalli Nageshwar Rao v. A.P. State Transport Corpn., 1959 Supp (1) SCR 319

[26] Ibid 6

[27] H.L. Trehan v. Union of India, (1989) 1 SCC 764

[28] I. P. Massey, Administrative Law (8th ed. Eastern Book Company, 2012)

[29] Ibid 5

[30] Ibid 25

[31] P. Leelakrishnan, Mini S. ‘Procedural Fairness in Administrative Decision Making’ (2017) 59(4) JILI < : https://www.jstor.org/stable/10.2307/26826613> accessed 6 May 2021

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