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International Law

Refugees: The Horns of a Dilemma

Dr. Nafees Ahmad

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The refugees in the present vicious visage want to stand to reason within the bounds of possibility by holding the scales at the odds being in favour etched in the feast of reason and the flow of soul so that they could come out of the horns of a dilemma.

Refugee status is an incredibly malleable legal concept that can take on different meanings as required by the nature and scope of the dilemma prompting involuntary migration. I have been talking about a trajectory of refugee rights beyond the rubrics of rights sans any regurgitation for more than two decades that is not reflected in the contemporary international refugee law. The governance architectures across the globe have blackballed the refugees from their itinerary of international obligations and prescriptions as enunciated in the UN Charter and Universal Declaration of Human Rights (UDHR). The International community has been performing its refugee mandate in a state of ostensible action for refugees who have been grappling with the quagmire of cynicism that has morphed all avenues of evolving solutions into geo-strategic polemics. Cartelization of humanitarian assistance and relief on the grounds of caste, colour, ethnicity, race, region, political opinion, social origin and statelessness amounts to the decimation of dignity, elimination of equality and liquidation of liberty.

The global dimensions of diplomacy, political permutations of international relations and paradoxes of protection priorities have pandered to procrastination in durable solutions which have trussed the paradigms of refugee protection. I have tried to have deciphered an understanding of refugee discourse that is innate, instinctive, intrinsic and inherent in transcendentalism whereas it is native, natural and normative in existentialism. Although, it is a well-established fact that classical and contemporary institutional conviction does not speak of this inalienable framework of refugeehood. Therefore, the present international refugee law poses more questions than offers answers. Despite the fact of it’s more than sixty years of existence it could not offer any durable or permanent solution to the problem of refugees such as Palestinian refugees and other intractable refugee questions across the globe. The most prominent challenge of the contemporary international refugee law is of its survival as law, and it must be attended in the right earnest otherwise it may turn out be a positive morality of a vanishing vacuum of the jurisprudence of international law. Let’s talk about rights beyond rights in a refugee peregrination paradigm from utopianism to utilitarianism within the premise of permanent protection having dwelt into epistemological, teleological, sensible and jurisprudential understandings of the refugee discourse.

The Refugee Desideratum

We, the People of the World, are all refugees in scriptures, structures, and literature commanded in the logistical and tactical architecture of divine delineations. But they are not regarded as such in geopolitical identities on planet earth at which refugees are conditioned by crossing lines called blurred borders, barbed boundaries and bracket barriers in a world-wide web of justice, equity, and the rule of law. Nobody wants to be a refugee but people are being made refugees that has really created a void in human relationships across the spectrum of humanity. That has pandered to the galvanizing a new cornucopia of questions which are not straightforward to answer as these are impregnated with multi-layered predicament, prevarication, and predaciousness of those who have the propensity to stir the course of history. Thus, the plight of refugee flight has acquired an immutable multitude, marmoreal magnitude, and immaculate mapping thitherto not available to be rummaged outside the confines of rudimental oblivion to regimental reminiscences.

There are refugees; there are rights but whose rights, what rights that are the questions? Should rights be understood in innate sense or merely as an expression of modern codification? Intrinsic rights should be regarded horizontal foundation for the vertical gestation and growth of refugee rights which are ancillary, incidental, peripheral and vicarious to the refugee discourse. Should rights be alive or dead? Rights could not be lifeless, if they were, they could not have been rights. How to visit these rights in classical and contemporary jurisprudence? How to address the psychological, mental and intellectual premise of violations forming an itinerary of alienation, agony, and trauma resultant in human displacement, social dehumanization, and human demonization? Is there any moral, ethical and ecclesiastical possibility to have the categorization of human pain, sufferings and deprivations enslaved in occidental and Asian jurisdictions, jurimetrix cs and jurisprudence? Should there be victors’ rights only? Is there just majoritarian premise of rights? Could refugee rights be interpreted, appreciated and adjudicated upon within the legalistic welter of words enunciated in hard laws and soft laws in the garb of definitions sans governance accountability? What about the poverty, gender, communal conflagration, generalized violence, organized crimes, mass rape, economic sanctions, economic recession, climate change, development displacement, mass movements of persons fleeing civil war, military occupation, foreign domination, gross violations of human rights, natural disasters, or simply bad economic conditions, natural disaster and scientific experiments as well-founded grounds of being treated as refugees? Should refugee protection paradigm still depend upon other human rights instruments for its being considered before national and international judicial tribunals? Shouldn’t time have come to make refugee law an independent substantive discipline of study? Shouldn’t existing definition of refugee be deconstructed, developed and designed? Shouldn’t we head for a new, novel and nice comprehensive, consolidated and cosmopolitan refugee law?

The Refugee Status

The most conspicuous stigma on humanity is having some of its integral parts as refugees whose life, liberty and dignity have been decimated, destined and destroyed in camps.  The contour, conviction, and commitment to contemporary international refugee law have outlived its utility. The present global refugee law poses more questions than offers answers. Despite the fact of it’s more than sixty-five years of existence it could not offer any durable or permanent solution to the problem of Palestinian refugees and other intractable refugee questions across the globe. The most prominent challenge of the contemporary international refugee law is of its survival as law, and it must be attended in the right earnest otherwise it may turn out be a positive morality of a vanishing vacuum of the jurisprudence of international law. Let’s talk about rights beyond rights in a refugee peregrination paradigm from utopianism to utilitarianism within the premise of permanent protection having dwelt into epistemological, teleological, sensible and jurisprudential understandings.

The matter of refugee status is of ancient origin, although the manner of treating it has not always been that which is currently acceptable. At every stage of its historical evolution, it underwent a volatile metamorphosis of legal construction. The idea of giving a home to the stranger appeared as early as the Old Testament. The complete code of treatment of refugees has also been crystallized in the Holy Quran and rights of refugees have also been come to be supplanted by modern refugee regime. Mass population movements occurred throughout history: The arrival of the barbarians in the Roman Empire, expulsion of Jews from Spain in 1492, expatriation of French Protestants after revocation of the Edict of Nantes in 1685, emigration of the French aristocracy after 1789 and the exodus of Jews from German territory are but a few examples. The estimated number of refugees in the world today ranges between twelve and fourteen million. A survey by the United States Committee for Refugees at the end of 1988 reported over four million refugees in Africa, nearly nine million in the Middle East and South Asia, nearly 280 000 in Latin America and the Caribbean, over 625 000 in East Asia and the Pacific, and almost 350 000 in Europe. As new refugee situations develop, such as the flow of more than half a million new refugees in Southern Africa, thousands of Iraqi Curds into Iran and Turkey, or as the number of Vietnamese boat people in Hong Kong increased sharply in 1988, or as thousands flee the civil war in Yugoslavia or the worsening economic situation in Eastern Europe, the problem becomes exacerbated.

Refugee Rights Beyond Rights

Refugees are the counter-product of sustainable hate that has a past in the present to shape the future oozed out of the clash of clans, castes, communities’ and countries since the inception of humanity. Human migration, movement, and mobility are entrenched in the human psyche since pre-socio-political crystallizations that have become most obvious, desirous and catastrophic in the twenty-first century necessitated by the ever-growing paradigmatic shift in its dialectics, dimensions, and delineations regarding perception, interpretation, and determinations. Deviant to the grounds whatsoever of displacement the biggest pain in one’s life is to have been dislocated from his or her country of origin in a manner that is fallible, fallacious and fatal? Thus, there are refugee rights beyond rights which can only be felt by the human soul and mind in the most profound sense of mental integration with the roots of birth. To displace anybody from his land of habitual habitation tantamounts to deny and divest him of his or her a catena of rights such as:

  • Right to a healthy life,
  • Right to psychological integration,
  • Right to have past,
  • Right to have a sense of allegiance to the homeland,
  • Right to have an ancestral identity,
  • Right to the immemorial neighborhood,
  • Right to historical culture,
  • Right to perennial socialization,
  • Right to classic climate,
  • Right to mental stability,
  • Right to mental health,
  • Right to specific custom,
  • Right to geo-political predilections,
  • Right to be consulted in economic modules,
  • Right to participate in community development,
  • Right to good governance,
  • Right to the rule of law,
  • Right to socio-economic development,
  • Right to leave and return,
  • Right not to be displaced,
  • Right to have rights beyond rights,

These rights encapsulate all the divisions of rights as natural claims, non-derogable basic bonds, fundamental freedoms, inalienable human entitlements, and rudimental human rights outside the convention-oriented prescriptions. The venomous vicissitudes of global change have presented a picture of development which is muddy, mawkish and manoeuvred by the political class. The politically empowered class happens to be around the chess-board of the common heritage of gene-kind in and around the domestic and international commands at which humanity is at loggerheads with humanity. Nevertheless, from retrospect to prospect, the miasma of migration has more been created, crafted and calibrated by aristocratic wiles, kings cozenage, royal revanchism, political prestidigitation, civilian charlatanry, political chicanery and subterfuge at every stage of the civilizational endurance and its graduation to ultra-modernity.

Diagnosis to Prognosis

Consequently, there is a contemptuous atmosphere of peace, progress, and prosperity that is alienated, exclusive, elite and with a tint of arrogance, aggression, and attitude of above the board while not swotting the experiences from economic melt-downs and fiscal drubbings in USA and Eurozone and elsewhere. These developments have made the humanity to move, move and move in addition to the humanitarian crises and climate-induced displacement as around the globe, millions of people are being subjected to risk of man-oriented displacement at a magnitude that is beyond human comprehension. The first inhabited island was submerged due to rising sea levels, and island nations around the Central Pacific, South Pacific and the Indian Ocean, as well as extensive tracts of land from Bangladesh to Egypt, risk partial or total displacement by the middle of this century. The impacts of global warming on habitat are being felt in multiple modes, various ways and different dimensions around the world. Rising sea levels have imperiled the very existence of Small Island Nation-States, while Inuit communities in North America and Greenland stirred with a well-founded fear of being displaced due to melting ice. It is horrible to note that climate-induced displacement (CID) is of particular significance to Australia given its topographical, geographical and geological proximity to islands such as Kiribati and Tuvalu, where the entire nation’s displacement is imminent. Australia is a prominent destination country in the region for so-called climate change ‘refugees’ who do not qualify as ‘refugees’ under international law. In this conspectus, the growing worldwide flow in the number of people leaving their country has created a significant challenge to India and other population-receiving countries and continents such as USA, Australia, Canada, UK, Switzerland, Pakistan, Europe and South Asia, etc.

These flows are mostly the consequence of pejorative, pernicious and deteriorating social, political and economic conditions in many countries and continents in the 1st, 2nd and 3rd  Worlds in the former Soviet Union, or among states that were within the Soviet, Europe, African and Indian Sub-Continental circumnavigate. Every nation-state at a particular stage of its development and history has struggled with the problem of human influx and outflux in one way or the other, but the stakeholders have rummaged no permanent, pragmatic and plausible or durable solutions in the game with a gavel. The plight of flight is not easy to be understood without having a heterodoxical hermeneutics of the causes, combinations, conflations, permutations, a miasma of mutations and the regime of reasons purportedly to have been emplaced by the state and non-state actors who morphed themselves in ostensible pro bono publico obligations across the globe. Thus, a holistic, panoramic and pervading understanding of the questions and issues of the classical and contemporary refugee regime is required to be rejigged.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

International Law

Environmental Governance and Human Rights: The Role of The Civil Society And Challenges in India

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The Indian judiciary is often credited for developing environmental jurisprudence in India. The Indian courts have devised and put to use a unique method of imparting environmental justice-doing away with the principle of locus standi and devising Public Interest Litigations (PILs) instead. Moreover, environmental governance largely rests in the hands of the government, the Ministry of Environment, Forest and Climate Change (MoEFCC) being the nodal agency in the administrative structure of the Central Government for the planning, promotion, co-ordination and overseeing the implementation of India’s environmental and forestry policies and programmes. However, active participation of the local communities, farmers, students, environmental activists, academicians, lawyers, NGOs and members of Civil Society in galvanizing the government machinery for establishing and implementing norms related to the environment as well as in mobilizing the masses for environmental causes must not be overlooked.  While the top-down approach followed by the Judiciary in recognizing and enforcing environment principles is often appreciated, the bottom-up approach adopted by the civil society to strive for environmental justice also deserves mention.

Civil Society and Environmental Governance-An Interface

Although there is no clear-cut definition of civil society, it is mostly understood in contrast to the state. Cohen defines civil society as “we understand “civil society” as a domain of social exchange between economy and state, comprised above all of the close area (especially the family), the sphere of associations (especially voluntary groups), social movements, and forms of public communication. Modern civil society is created through forms of self-constitution and self-mobilization. It is institutionalized and generalized though laws, and especially subjective rights, that stabilize social differentiation. While the self-creative and institutionalized dimensions can exist separately, in the long term both independent action and institutionalization is necessary for the reproduction of civil society.”The American writer Jeremy Rifkin calls civil society “our last, best hope’’; New Labour politicians in the UK see it as central to a new “project” that will hold society together against the onrush of globalizing markets, the United Nations; the United Nations and the World Bank see it as one of the keys to “good governance” and poverty-reducing growth. The membership of the civil society is quite diverse, ranging from individuals to faith-based and educational institutions to pressure groups such as NGOs or not-for-profit organizations.

Governance is often described as a new form of regulation that differs from traditional hierarchical state activity (‘government’). Generally, ‘governance’ implies notions of self-regulation by societal actors, of private-public cooperation in the resolving of societal issues and new forms of multilayered policy. Environmental Governance is defined as the process that links and harmonizes policies, institutions, procedures, tools and information to allow participants (public and private sector, NGOs, local communities) to manage conflicts, seek points of consensus, make fundamental decisions, and be accountable for their actions. In the context of Global Environment Governance, Gemmmill and Bamidele-Izu have identified the following five major roles which civil society might play in global environmental governance: (1) collecting, disseminating, and analyzing information; (2) providing input to agenda-setting and policy development processes; (3) performing operational functions; (4) assessing environmental conditions and monitoring compliance with environmental agreements; and (5) advocating ecological justice. The increasing role of civil society in global environmental diplomacy is often explained with two arguments: 1) Civil society representatives provide valuable information and expertise to governments and thus help them reach “better,” that is, more effective, agreements. This information provision role becomes particularly important when governments face budgetary constraints. 2) They provide legitimacy to intergovernmental negotiations and thus mitigate the “democratic deficit” in global policy making, which takes place far away from domestic political arenas and the national demos.

Environmental Movements in India and Role of Civil Society

The environmental movement is a type of “social mobility that involves a group of individuals and alliances that perceive a common interest in environmental protection and act to bring about new changes in environmental policies and practices.”In India, these movements emerged as a response to the environmental challenges arising due to the developmental policies espoused by governments. The Chipko Movement or the Chipko Andolan was perhaps one of the first ecological movements which saw the participation of marginalized and tribal communities in forest conservation. Starting as Forest Satyagraha in the 1930s in Uttar Pradesh (now Uttarakhand), the movement has spread too many other States in India like Himachal Pradesh, Rajasthan, and Karnataka by 1980s.  The upsurge of similar environmental movements, demanding that forest ownership and management must revert from state to communal hands and that local communities should be actively involved in afforestation programs brought significant changes in government’s policy about forest management. A large number of non-governmental organizations (NGOs) ably assisted the environmental movements in their efforts: the directory of environmental NGOs in India published in 1989 lists 879 large and small NGOs spread throughout the country of which half were involved with forest-related issues.

The success of this collaborative struggle was reflected in India’s National Forest Policy of 1988 and the Circular on Joint Forest Management of 1990. In revising its national forest policy in 1988, the Indian government for the first time declared that forests were not only to be commercially exploited but must also contribute to soil conservation, environ mental protection, and the survival needs of the local population. Another significant environmental movement in the history of modern India is the movement against the Silent Valley Project. The Silent Valley is a stretch of Tropical Evergreen Forest in Pallakad district of Kerala.   The Movement was launched against the decision of the State government to build a hydroelectric dam across the Kunthipuzha River that runs through the Silent Valley. However, because of the strong opposition from NGOs, conservationists, academicians and eminent writers, corporate and political leaders along with the media, Silent valley was declared a protected area in 1981 and the Project was called off in 1983.

The Save the Narmada Movement (Narmada Bachao Andolan, NBA) is the people’s movement launched against the construction of huge dams on the river Narmada. NBA is a non-governmental organization (NGO) that mobilized tribal people, adivasis, farmers, environmentalists and human rights activists against the Sardar Sarovar Dam being build across the Narmada River, Gujarat. Their campaign led to the establishment of a Bank commission in 1991 to independently review the project, which ultimately recommended the World Bank’s withdrawal. One of the most important features of these environmental movements in India has been the active involvement and participation of local voluntary organizations or Non-Governmental Organizations (NGOs). For example, Dasholi Gram Swarajya Mandal (DGSM),a cooperative organization started by Chandi Prasad Bhatt actively participated in the Chipko Movement along with activist Sunder Lal Bahguna. Inspired by Gandhian principles of Non-violence and the idea of Sarvodaya (self-determination), the cooperation educated the village-community and mobilized them against the logging of trees.

Similarly, the Kerala Sastra Sahitya Parishad (KSSP) started the agitation against the Silent Valley Project. KSSP, a People’s Science Movement (PSM) founded in 1962 from Kerala published a socio-political report on the ecological, economic, and social impacts of the hydro-electric project proposed in the Silent Valley. The Movement also saw the participation of eminent poets and writers, who educated the masses about the significance of the valley through stories, poems, dramas, speeches, and articles. Poet-activist Sugathakumari’s poetry “Marathinu Stuthi” (Ode to a Tree) became the opening song/prayer of most of the “save the Silent Valley” campaign meetings. The KSSP also worked for the energy needs of the State and developed environmental- friendly alternatives such as smokeless chulhas and irrigation using ground water to the optimum extent. The alternatives suggested by the organization were widely adopted or practiced that the UNESCO conferred its Right to Livelihood Award on KSSP and the UNEP included it in its `Roll of Honour. The protest groups formed in all three affected states of Gujarat, Maharashtra and Madhya Pradesh and included or were supported by persons facing displacement, students, social activists, Indian environmental NGOs, international NGOs, and transnational networks. The support groups of Narmada Bachao Andolan mainly of activist groups and registered NGOs mainly classified into three main groups- those with interest in human rights, the environment, and alternative development.

Environmental Human Rights and Environmental Justice: The Legal Strategies and the Role of Civil Society

India owes its environmental activism mostly to Public Interest Litigations (PIL) developed by Justice P.N. Bhagwati and Justice Krishna Iyer, two Supreme Court judges in the 1980s. The Supreme Court of India declared that “where a wrong against community interest is done, the principle of locus standi will not always be a pre-requisite to draw the attention of judiciary against a public body for their failure in discharging constitutional duties.” By taking on board the citizens’ concern about an inactive or indifferent legislature and executive, the Supreme Court has created space for the civil society groups to engage as active participants in the scheme for protecting the environment and ensuring an individual right to a healthy environment. As a result, in some cases, civil society groups have put forward different views on development activities such as the socio-cultural and environmental impact of development policy in the environmental decision-making process. Moreover, by allowing the third party to file cases related to the environment, the court has given voice to the inanimate objects, like forests and rivers, which cannot represent themselves in courts.

However, the role played by concerned citizens and NGOs in filing these PILs is essential. A number of these cases, beginning with the Dehradun Lime Stone Quarrying case (1989 AIR 594) followed by the Tehri Dam case (AIR 2008 MP 142),Bichhri Village Industrial Pollution case, (Writ Petition No. 967/1989)Vellore Leather Industry Pollution case, (AIR1996SC2715) Sariska Wildlife Sanctuary case (1993 SCR (3) 21) and T.N. Godavarman case ((1996) 9 S.C.R. 982) came to court’s attention through Public Interest Litigations and were filed by either Non-Governmental Organisations (NGOs)or concerned citizen/environmental activists on behalf of other persons or groups or public. Several environmental activists like MC Mehta have filed PILs in Supreme Court of India to protect the environment. The lawyer cum environmental-activist, single-handedly, has filed petitions in the courts to protect the environment. Landmark environmental cases filed by him include the Taj Mahal case, ((1997)2 SCC 353) Ganges Pollution case (1988 AIR 1115), Vehicular Pollution case (AIR 1999 SC 301),Oleum Gas Leak Case(1987 SCR (1) 819), Kamal Nath Case ((1997)1 SCC 388) and many other such cases.

The Supreme Court Case Reports show that that out of 104 environmental cases from 1980-2000 in the Supreme Court of India, 54 cases were filed by persons who were not directly the aggrieved parties and 28 cases were filed by the NGOs on behalf of the affected parties. What makes these cases interesting is that in most of them, the Supreme Court has read environmental rights into basic fundamental rights (especially Article 21) guaranteed under the Constitution, thus making them a bedrock of environmental jurisprudence in India. The Supreme Court has also taught various environmental principles like Sustainable Development, Polluter’s Pay Principle, Precautionary Principle, Public Trust Doctrine and Principle of Absolute Liability into these cases, and thus, within environmental jurisprudence.

Environmental Governance Challenges: The Road Ahead

Indian Courts, while deciding upon an environmental issue, are often confronted with the problem of striking a balance between development needs of India and protection of the environment. For example, in Rural Litigation & Entitlement Kendra, Dehradun v. The State of Uttar Pradesh(AIR 1985 SC 652), the Supreme Court, was informed about the developmental needs of the region that the closure of the mining operations would result in and the subsequent loss of jobs by the workers. The Court took the position that its action would undoubtedly cause hardships to them, but argues that it was the price that had to be paid for protecting and safeguarding the rights of the people to live in the healthy environment with minimal disturbance of the ecological balance and with avoidable hazard to them and their cattle, homes and agricultural land. The case is the classic example of the dilemma faced by the courts in resolving the debate between development and environment.

However, the problem faced in the enforcement of the decisions of the courts is more acute. In many respects, the Indian government machinery has failed to adequately enforce the existing environmental laws and the decisions of the court. Although there are many causes for this failure, the primary reason is corruption. While the judiciary has acted as the savior of environmental rights in India, the implementation of these rights has been highly problematic. Corruption exists at all levels of governments in India and its impact on the environment is profound, and amount to a clear violation of Article 21 of the Indian Constitution. One of the other reasons why executive has not been able to enforce environmental laws and decisions effectively is the inefficiency of the administrative bodies concerned with the implementation of these laws.  Since environmental concerns came into existence under the pressure of environmentalists and NGOs in India, therefore, one finds a piecemeal approach rather than an integrated approach at the planning level. Vyas and Reddy point out the problems in environmental governance in India, i.e. lack of coordination between various departments concerned with environmental issues. He notices that the functioning of various departments does not reflect the concern of the policy-makers towards environment since most of these departments are ineffective in implementing the environmental policies due to the limited powers are given to them.

Moreover, they do not have resources to assess the extent of environmental degradation scientifically. This lack of coordination seriously affects the implementation of laws and policies related to the environment. Another concern in this regard is the role played by the masses in implementation of the court’s orders. For example, in the Delhi Vehicular Pollution Case, the role of civil society, especially citizens, is criticized. In this case, despite Court’s pivotal role, lack of public participation was responsible to some extent for slow progress in cleaning up of Delhi air. To make the policies effective the available human resources capacity need to be augmented to address the environmental issues.

Long before the courts in India started delivering landmark judgments for protecting the environment, the civil society has generated enough environmental consciousness amongst the people to stand against any major destruction of the ecosystem they thrive on. Various social cum environmental movements spread along the country made it evident that people at the grass root, who are directly affected by the developmental policies persuaded religiously by the governments, will not surrender their cultural and social rights easily. These subaltern movements saw unprecedented participation and support of people from all walks of society; villagers, women, academicians, lawyers, students, activists, politicians, and NGOs. The environmental consciousness generated by and in the civil society as a result of these movements later found expression in the form of Public Interest Litigations. PILs became a tool in the hands of environmental crusaders and activists to persuade the government to uphold the rights of the citizens. However, the road for achieving environmental justice in India is fraught with challenges. The courts are often faced with the dilemma of choosing between development and environment, and the decisions are often not implemented in the way courts have meant them to be implemented. The reason is the lack of efficient machinery and widespread corruption.

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International Law

70 Years On: UN Declaration on Human Rights from the lens of Victimology

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Michelle Bachelet, United Nations High Commissioner for Human Rights

Authors: Srimal Fernando and Vipin Vijay Nair*

The Universal Declaration of Human Rights (UDHR) adoption by the General Assembly of the United Nations (GAUN) 70 years ago, nonetheless, is more relevant to the future and today’s society.  Everyone is entitled to all the rights and freedom set forth in this landmark declaration requires major attention. However, these defining characteristics of the UDHR constitute not only its strength, but also its weaknesses.  This important milestone in the UN history is a testament to the commitment of the UN to global rules and values. On this important occasion of the 70th anniversary of UDHR her press statement on 9th December, UN High Commissioner for Human Rights Michelle Bachelet said, “the document has gone from being an “aspirational treatise” to a set of standards that has “permeated virtually every area of international law”.

The most meaningful words of   UN High Commissioner on the notion of human rights resonates in today’s discourse. In the recent past conflicts, migration related issues, racial  polarization  and  inequalities   have  played   a large  role   in breakdown of societies.  Given the uncertainties, the numbers of people victimized due to hate crimes are unquestionably high. The distrust of reason is perhaps one of the most important traits of such issues. In fact, one could argue that victimology, as a subject doesn’t immediately spring to the mind over these issues or as a problem-solving method. There is no doubt of Victimology as a branch of criminal justice studies has been responsible for the expanding knowledge focusing on the victims of crimes. Perhaps in order to understand the dynamics of victimization, Victimologists offers a more realistic picture about   Victimology as a domain of social science. Hence the introduction of victimology   was major step forward in strengthening the fundamental principals of the Universal Declaration.

Looking at some characteristics of victimology narratives within the judicial proceedings requires alternative   behavioral and forensic science methods to investigate the causes, is a part of a larger study of the victimology specialty. Therefore, the element Forensic victimology, a sub-division of victimology reinforces and is closely linked to criminal justice studies.  In this context Forensic victimology analyses victim’s lifestyle and circumstances, the events leading up to their injury, and looks into the precise nature of any harm or loss that he or she had suffered.

While some nations looked for new laws to prohibit hate crime against individuals or groups, others sought the answers in solving this pertaining issuing relating to victimology using home grown methods. Various intervention strategies have been implemented in the recent past. There are various laws, declaration, codified rules and regulation that prevent individual under the international law, but these are working towards penalizing the wrong-doer and not focusing on the overall aspect and perspective of the crime. In the global context, laws that prohibit any type of hate crime against an individual or groups were partially fruitful.  Very few countries in European Union, North and South America have focused on implementing laws against hate crime.   However, 45 states in America expanded   this law and was major step forward.  Unquestionably, the most renowned organizations in the world such as United Nations High Commissioner for Refugees (UNHCR), International Criminal Court (ICC), The World Society of Victimology (WSV) holding consultative status with UN and Council of Europe, International Criminal Justice Institutes and other   related agencies have been playing a realistic role intervening in furthering of victimology subject. International consensus is growing on human rights and freedom’s discourses that is designed to look beyond the victim stereotype and improves the policies relating to the prevention of crimes as well as to look into the victim themselves.

*Vipin Vijay Nair is Doctoral Research Scholar at Jindal Institute of Behavioral Sciences (JIBS) and a Research Fellow at Jindal Global Law School (JGLS)

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International Law

US Migrant Crisis and the Global Human Rights Protection Standards

Dr. Nafees Ahmad

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Migrants and asylum seekers from Central America have been marching towards the US for protection and shelter. But US government has deployed around 6000 soldiers to prevent them from entering into the US. These migrant and asylum seekers convoys have been dubbed as “a foreign invasion” by the incumbent US President that needs to be confronted by the US army. President Trump hard-headedly argued that “immigration is a very, very big and very dangerous, a really dangerous topic” that prompted the US army officials of firing tear gas shells at migrants’ convoys. It is nothing but the portrayal of an invasion by the Central American migrants and asylum seekers into the US. Such a US posturing on international migration is a manifestation of the US tradition of hypocrisy and its deep-seated aversion towards the migrants that violates global human Rights protection standards (GHRPS). Thus, the across-the-board new migration strategy of the US is based on the idea of ultra-restrictionism that deprives the immigrants from public benefits, and recently President Trump has entirely abolished the Deferred Action for Childhood Arrivals (DACA) programme along with the abrogation of the temporary status protection programmes. These measures have adversely impacted the GHRPS required for the 2 million regular migrants in the US which spawned the emergence of a well-founded fear of persecution, far-right nationalism, and socio-cultural schism.

New Migration Strategy

The US restrictive measures have attracted international media attention and the US is hell-bent to send a message to the international community that it would not be privy to the non-binding standard for a safe, orderly and regular migration known as the UN Global Compact on Migration (GCM) arrangement scheduled to be agreed in December 2018 and US is alone capable to take its decisions on immigration issues under America First Policy (AFP).Therefore, the GHRPS for migrants and asylum seekers are apparently immaterial in the US immigration policy objectives. Trump administration under AFP discourse envisions restrictionism, deterrence, and pre-emption against GHRPS while denying public benefits to immigrants at par US citizens. Unfortunately, strong and inclusive migration control strategy has been devised and is being implemented to restrict the rights of those migrants and immigrants who are already there in the US. For example; Trump administration has been attempting to temper the 2020 US census that is bound to influence the political scene for the advantage of Republicans in the years ahead.

However, ex-President Barack Obama also resorted to the deployment of US armed forces on the US-Mexico international border to curb migration that resulted in some cases of family-separations but at a low rate if it is measured against the present Trump administration. The point of distinction between the Obama and Trump administrations is that the former recognized the contribution of migrants to the US’s growth; however, this understanding has steadily acquired a negative narrative under the later administration. President Trump has been demanding $5 billion to construct a wall along the US-Mexico international border otherwise intimidating shutting down the US government. However, Trump administration apparently does not leave any stone unturned in case of violently pushing back migrants and asylum seekers. Trump administration has inaugurated its immigration policy with a Travel Ban from seven Muslim countries and now it has been stretched to Latin American countries against all norms of GHRPS and international law.

Global Human Rights Protection Standards

The incumbent US administration is more interested in denying migrants and asylum seekers the access to benefits under the US national laws and global human rights protection standards. The latest Trump’s proclamation is to contain the new arrivals from Mexico and its Southern nation-states which restrict the right to seek asylum in the US beyond the port of entry. Further, impugned presidential proclamation defers well-established US asylum legislation that contravenes due process of law, the rule of law and international treaty law recognized and sanctified under the Constitution of United States of America. However, this presidential proclamation or asylum ban has, for the time being, been stopped by the San Francisco Federal Court under a restraining order.

In spite of this, the Immigration and Nationality Act, 1965 states that any “alien or foreigner who is physically or personally present in the US or who comes in the US (whether or not at an officially designated port of entry, irrespective of such alien or foreigner’s status, may apply for asylum.” However, under Section 212 (f) the US President is empowered to enforce immigration restrictions by issuing a proclamation. Further, the US President may if feels that “the entry of any alien or foreigner or any class of foreigners or aliens into the US would be detrimental to the American interests suspend the entry of all foreigners or aliens or any class of aliens or foreigners as non immigrants or immigrants, or impose on the entry of foreigners or aliens any restrictions he may deem to be appropriate.” Precisely, President Trump invoked this provision of law to clamp these insensitive and punitive restrictions. This presidential decree has aggravated the Trump’s AFP to new levels of castigation. Groups and individuals seeking asylum and entering the US while avoiding official ports of entry were slapped with criminal cases that got them separated from their families. Such irregular entries were criminalized by the US border authorities in violation of “the right not to be penalized for irregularly entering into the territory of High Contracting State” under Article 31 of the 1951 UN Convention relating to the Status of Refugees (UNCSR) with its 1967 Additional Protocol that has been acceded to by the US.

Having hit with such transgressions, the criminal charges leveled against asylum seekers did not affect their asylum claims, and they were duly entitled to have their asylum claims heard. However, this scenario is no more there as new reports indicate that a single-digit number of asylum applications are disposed of daily at the designated entry ports. Therefore, such a situation has led to inordinate delays in processing the applications of asylum seekers at the border that is a violation of Section 1 of Amendment XIV of the Constitution of United States of America that codifies the core values of the people of the USA. But many persons have been denied access and abducted, raped and thrashed to the hilt. However, Article 33 (1) of the UNCSR contains the principle of non-refoulement stemming from the customary international law that works as “a safety valve” which obligates the nation-states to protect a refugee, migrants, stateless and asylum seekers who is fleeing from persecution, risk or danger to life in his or her country of origin or homeland. Few scholars contest the applicability of the principle of non-refoulement extra-territorially; however, the UNHCR (United Nations High Commissioner for Refugees) has already recognized the extra-territorial application of the non-refoulement principle, and the denial of entry into the US is a violation of the UNCSR.

Moreover, there is another principle of international law where under collective or mass expulsion of the refugees, migrants or asylum seekers is prohibited and obligates the nation-states to examine objectively and cumulatively every expulsion action of each individual and group of persons. The “hot return” policy of the US clearly violates this obligation under GHRPS. Thus, this practice primarily rescinds the right of the huge majority of migrants and asylum seekers to seek for asylum. Therefore, it also circumvents the objects and purposes of the UNCSR.

The Hot Return Policy

The hot return policy stems from the US Department of Justice regulation of 1953 that entails the “100 Air Mile Zone” rule; however, that negates the Fourth Amendment of the US Constitution under which the right and protection against arbitrary and random searches have been provided within this zone. But Border Patrol officials have been empowered to operate the immigration checkpoints in this vast zone with extra-constitutional powers. Under the “zero tolerance policy” Department of Homeland Security wields enormous powers and conducts speedy ejections of undocumented migrants within this area. The fundamental rights and freedoms such as the right to counsel or the right to a hearing before a judicial immigration authority and the right against expulsions are not available in the situation of “hot returns.” The new regulation has precisely been founded upon this mechanism and whosoever arrives at the designated checkpoints will be pushed back devoid of any due process of law. Anti-migration-driven steps like the family separation, ankle-monitors for asylum seekers and detention of asylum seekers during the process of determination of their asylum claims. Therefore, it has become a double-edged weapon as when asylum seekers try to apply at authoritative ports of entry they are prevented from doing so and when some migrants and asylum seekers do not follow the law and try to manage surreptitiously asylum benefits they are also prevented from claiming asylum within the US. In fact, the impugned policy violates the UNCSR, customary international law and the provisions of general international law. Therefore, civil society institutions like the Center for Constitutional Rights, the Southern Poverty Law Center and American Civil Liberties Union filed cases in the US courts against such illegal actions of the Trump administration.

The Rights of Migrants and Asylum Seekers

There is a plan to have secret measures to restrict the rights of migrants and asylum seekers in the US against all protection standards of the so-called civilized world. The rights of refugees, migrants, and asylum seekers are in active violation in the US who espouses the cause of human rights, the rule of law, democracy and diversity worldwide. For example; in the Matter of A-R-C-G- et al. decided on August 26, 2014 at the US Department of Justice by the Executive Office for Immigration Review where the Board of Immigration observed that “married women in Guatemala who are unable to leave or run away from their relationship” which can constitute a cognizable “membership of particular social group” that establishes the basis of the right to seek asylum or withholding of removal under Sections 208(a) and 241(b)(3) of the Immigration and Nationality Act, 1965 and which is also a prerequisite for meeting the criterion of refugee definition under Article 1 of the UNCSR. However, law officers under the Trump administration adamant to subvert the well-established legal standards that provide respite and reprieve in the cases of domestic violence.

There is a perennial cycle of legal measures that are bound to belittle existing human rights protection standards like latest Trump administration’s endeavour to reverse the Flores v. Reno popularly known as Flores Settlement Agreement (FSA) in September 2018. The reversal of FSA will be the most inhuman act of the present US administration as separating and snatching children from their parents cannot be justified under any circumstance whatsoever.  FSA determines the limits on the duration and conditions under which children could be incarcerated in immigration detention, and it also regulatesthe detention, treatment, and release of detained minors by the immigration authorities. However, Trump Administration seeks to terminate the FSA’s legal defences for children, including the provision that children must be shifted to a non-secure, licensed facility within three to five days of detention, which has been construed to allow for an extension of up to 20 days in times of “emergency” or “influx.” The proposed regulations include some policies which, if implemented, would allow the government to incarcerate more families for even longer periods. Primarily, FSA’s goal was to release families and minor children from immigration custody quickly. Therefore, if FSA is reversed now, it would violate GHRPS and due process of law.

Way Forward

The US is the first country in the world that has been recognized as a country of migrants, enriched by the migrants and celebrates multiculturalism as an inalienable part of its existence since time immemorial. However, US policies based on the doctrine of American interests worldwide has done a massive disservice to the lives of the people worldwide.  The US supports and protects many national governments who serve its interests, US exploits and expropriates the natural resources of many countries and its prescriptive approach in formulating economic policies, forced regime change, subjugation of international organizations and selective discharge of international obligations have also contributed in displacing people from their roots. Therefore, it has to share the responsibility of hosting migrants and asylum seekers, particularly from its vicinity. In fact, many anti-migrants measures violate US municipal law, the US’s international treaty obligations as well as general international law. The US has to abdicate its restrictionism based on hate, threats, and xenophobia in consonance with its historical traditions of liberal democracy, diversity, and multiculturalism.

In this context, all anti-migrants restrictions and sanctions must be withdrawn while respecting GHRPS and international law obligations.As pictures circulate worldwide of US firing of tear gas enveloping migrants, asylum seekers and their children on US-Mexican border and terrified faces of children who are being snatched from their parents by the US Border Patrol agents, a UN Global Compact on Orderly and Safe Migration is likely to win near-universal approval at the inter-governmental conference scheduled to be held in Marrakesh, Moroccoon December 10-11, 2018 expected to be the final step before the UN Global Compact for Safe, Orderly and Regular Migration is formally adopted by the UN General Assembly. It has been a long-drawn journey to achieve such an ambitious plan for regulating and governing international migration by the international community. However, it would not be a legally binding treaty even then, unfortunately, US has already shunned this global initiative against the mandate of its own constitution.

The Constitution of the United States of America is a sacred covenant achieved by an immeasurable amount of human investment that has established an equal society in America. But, unfortunately, these restrictions on the rights of migrants and asylum seekers have weakened the US constitutional guarantees and liberties under the current administration. The emergence of the far-right political discourse that is being well-sponsored and patronized under the Trump administration must be countered by strengthening the liberal democratic political discourse, and same must also be reflected in the institutional governance frameworks of the United States of America.

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