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International Law

Religious Hatred & International Law

Rashad Aslam

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Racism has climbed the political agenda at national, and international levels. Reports from national and international non-governmental organisations (NGO’s) and inter-governmental organisations have focused considerable attention on racism and xenophobia and document an increase in racism, xenophobia, anti-Semitism and race-related activities. Hate speech is one form of racism   which is directed to the victim. The current challenges posed by hate speech across the globe have prompted the need to better understand the evolution of the right to be free from the harm of hate speech as codified within Article 20(2) of the International Covenant on Civil and Political Rights.Martin Luther King once purported that, ‘like an unchecked cancer, hate corrodes the personality and eats away its vital unity. Hate destroys a man’s sense of values and his objectivity’.

The   contribution that is made by   international law to religion is   in the form of universalistic norms protecting religious diversity. Such   rules are to be found in early modern treaties such as Westphalia ending the Thirty Years War in 1648 and Vienna ending the Napoleonic Wars in 1815, however, the modern period of international guarantees, often violated, of religious freedom was guaranteed by Article 22 of the League of Nations Covenant after the First World War.

The European Court of HumanRights (ECtHR)

The European Court of Human Rights (ECtHR) serves as the regional human rights enforcement mechanism for the 47 signatories to the European Convention on Human Rights (ECHR).Article 10 Section 1 of the ECHR guarantees the freedom of expression―without interference by public authority, in contrary  Section 2 of the same article states that this freedom is ―subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society . . . Although The US . Constitution considers freedom of speech as a paramount right, on the contrary, the European model considers it  merely as one right that must be weighed against other democratic rights.

The decisions of the European Court that came into force in April 2010 are binding on the member states in judgments to which they are parties. This new protocol strengthened the enforcement abilities of the European Court. Several decisions have come out of the European Court concerning the intersection of freedom of speech and incitement to racial and religious hatred, including two cases which illuminate the boundary between what is acceptable and unacceptable speech, as determined by the ECHR.

Applying Article 10 to Quran burning, the European Court is likely to find that a state is within its rights to restrict such an act. Quran burning is proscribed in the domestic laws of many member states. Those laws comport with the goals listed in Article 10 Section 2 because, arguably, they protect ―the interests of national security by limiting violence against nationals, both in country and in military theaters, like Iraq and Afghanistan. They protect ―the rights of other by limiting violent demonstrations aimed squarely at one sector of society: Muslims. Furthermore, like in Giniewski, Quran burning is likely to be considered violence, so the European Court should broadly construe its responsibility to intervene.

The International Convention on Civil and PoliticalRights (ICCPR)

ICCPR, is an international agreement that names all civil and political rights enjoyed by the citizens of its member states, including freedoms of speech. It is unique because no single designated court adjudicates this convention.Article19oftheICCPRguarantees freedom of expression in general, but Article 20 proscribes war propaganda and ―any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Under Art 19(3) of the ICCPR, restrictions on free speech must satisfy three criteria: they must be provided by law; they must be based on permissible grounds (including the protection of rights or reputation of others and the protection of public order); and must be necessary to achieve a legitimate aim (which involves a proportionality analysis).

The ICCPR clearly illustrates the difference in the American and European approaches to the issue of speech protection. Essentially, European law declines to subscribe to the principle of content neutrality, the idea that speech cannot be restricted based on the substance of a message. By qualifying speech freedom so dramatically in Article 20, the drafters of the ICCPR weaken the ―value judgment in Article 19 that freedom of speech is an important individual right that should be protected, thereby declaring that some ideas are so harmful that they should not be protected.

Moreover , Article 4 of The Committee on the Elimination of Racial Discrimination (CERD) provides that measures designed to suppress hate speech need to be implemented with ‘due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention’.It is generally accepted that no area of human rights is so distant from a meaningful international consensus as the right to religious diversity, despite the fact that the rights to religious freedoms enshrined  in these important international instruments. Furthermore,   virtually  there is no effective universal supervision of international rights to religious diversity. There is, however, a regional exception in European human rights law. For example, Article 9 of the 1950 European Convention on Human Rights and Fundamental Freedoms guarantees the right to freedom of thought, conscience, and religion. Despite  the fact that   Article –  9 contain the   right and freed of religion,   however , Article 9 has been applied, albeit less often and less forcefully , by the European Court of Human Rights in Strasbourg compared to the other parts of European convention .

Therefore  , it can   be concluded that there are mechanism  to bring the  perpetrator of  hate speech to justice but  it all  depends on the  willingness and the racial  conscious  of the state . The quran  burning is a regular occurrence but is being neglected by the  European nations  . 

International Law

Reassessing Sustainable Governance Models for the Post-COVID 19 World Order

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Authors: Manini Syali and Aaditya Vikram Sharma*

The Coronavirus pandemic is not the first occasion when human civilizations are witnessing the outbreak of a deadly disease. This becomes even more crucial in the present day era, dominated by technological and scientific advancement, when cures for a number of life threatening ailments have successfully been discovered. Yet, a virus, because of its highly contagious nature has brought human life to a complete halt and even specialised international organisations like the World Health Organisation, devoted towards the sole objective of maintaining health care standards worldwide, more or less appear to be helpless in containing it. The pandemic can be called a watershed moment, after recovering from which, the way human beings have been living in industrialist societies will change drastically. Signs of this change can be felt in the form of increased awareness towards environmental issues, which in spite of having been a subject matter of policy consideration for more than fifty years now, largely remained being seen as ancillary in front of ‘crucial issues’ like peace, security, poverty etc., which demand swifter actions. The need of the hour, therefore, is to broaden the horizons of ecological analyses, as it is being done traditionally, and to realise that pathogens need to be made an integral part of eco-system management.

Further, it is a well-known fact that the consequences of environmental degradation have always been seen in anticipatory terms, reducing the gravity of the situation further. Moreover, the environmental doctrines like ‘sustainable development’, themselves are worded in such a manner that they portray sufferings of the generations yet to come instead of being seen as a present day problem. It will also not be wrong to say that there exists a resemblance between environmental principles like the polluter pays principle, precautionary principle, transboundary environmental pollution etc. and the classic common law doctrines having their basis in the tort of negligence. This has further strengthened the perception that non-abidance with the said doctrines will merely give rise to claims of compensation which can be easily settled in monetary terms. Alternative jurisprudential theories like green-criminology, which advocate criminal remedies in case of environmental destruction, or imbibing sustainability in all kinds of regulatory frameworks, therefore, majorly remain limited to academic discussions.

An attempt will, therefore, be made in the present article to trace the evolution of the already existing models of environmental governance and give a critique, highlighting their non-applicability in the post-Corona world order, which would demand alternative models of sustainability and would not only help in containing the spread of similar diseases in the future but will also supplement effective implementation of the already existing environmental law instruments. 

Technocratic Progress and Altered Human Conditions

In the 18th century, the human kind encountered a life changing turn of events in the form of Industrial Revolution. The repercussions of the revolution were such that it did not remain limited to the economic front and left its impact on the social and cultural life of individuals as well. Moreover, the changes which the society underwent as a result of the revolution were rather quick and demanded implementation of regulatory frameworks, covering different aspect of human life. A few examples of the same are family laws for regulating altered family ties, alien to the pre-industrial society, establishment of a legal regime for intellectual property rights, banking and commercial laws for facilitating the contemporary financial activities etc. The way nation states interacted with each other also witnessed drastic changes due to increased dependence on technology.

The gravity of the situation, however, was only realised in the year 1962, in the aftermaths of the Cuban missile crises, when around two dozen experts met in Santa Barbara, California during a Conference to discuss the impacts of technology on human affairs. The conference ended on an optimistic note, but also received a highly sceptical submission from the side of French sociologist Jacques Ellul, who argued that human life had become dangerously dependent on Technology and no aspect of it had the capacity to escape ‘the technique’.

Early Years of Environmental Governance

The criticisms against the technocratic notions of ‘progress’, however, remained limited to sociological fronts for a long time despite emergence of early signs of Climate Change in the late 1950s itself.The United Nations (UN)-centric international legal regime also remained silent on these issues till the advent of the UN Conference on Human Environment (Stockholm Conference),held in the year 1972. The Conference was the first occasion when global environmental issues were discussed as a matter of concern at the global level. Before this also environmental treaties existed, but they largely remained limited to localised issues like wildlife preservation, migratory birds, conservation of wetlands etc. Multiple factors like extinction of the Blue Whale due to indiscriminate hunting, rampant nuclear bomb testings in the 1960s and use of chemical warfare during the Vietnam War which adversely impacted environment as well as human health, finally resulted in a proposal from the side of the Swedish government to organise the Conference.

It will not be wrong to state that the Stockholm Declaration, the legal instrument produced as a result of the Stockholm Conference appears more to be a Human Rights instrument rather than an environmentally oriented regulatory framework. Moreover, the anthropocentric nature of the declaration, which otherwise is popularly known as Magna Carta of environmental law, gets reflected in its preamble itself.

Evolution of Sustainable Governance Models

This spirit of the declaration, was further carried forward in the Brundtland Commission report, published in the year 1987, which gave the concept of ‘sustainable development’ a concrete shape. Through this concept it was realised that developmental activities cannot be given up in absolute terms and the need of the hour, therefore, was to adopt environmentally sustainable activities to create a balance. The next milestone in environmental regulation, achieved by the World Community, was the UN Conference on Environment and Development. The conference gave birth to three important environmental law instruments namely, the Rio Declaration, the Convention on Biological Diversity (CBD) and the United Nations Framework Convention on Climate Change (UNFCCC). Further, all three of the above mentioned instruments had ‘sustainability’ as their theme. 

Despite receiving a good response from nation states in the form of substantial number of ratifications, the objectives of the above mentioned international instruments has remained a distant dream and the natural environment continues to witness deterioration, so much so, that it is about to reach the stage of irreversibility. Further, rampant developmental activities, which are being carried out at a global scale have also totally disregarded the principles of ‘conservation’ and ‘sustainable use’, as enshrined in the preamble of CBD. The UNFCCC mandate of ‘stabilization of greenhouse gases’ has also not received a collective effort from the side of the World Community.

Sustainability in the Times of Coronavirus Pandemic

The significance of these issues increases multifold in the contemporary times when the World is witnessing a humanitarian crises in the form of the COVID19 pandemic. Establishing a connection between ‘development’, ‘environmental degradation’ and the Corona Virus pandemic is  important because in the roots of this virus spread lies the illegal wildlife trade in which China has remained engaged for decades. In the past also the scientific community has attributed origination of several contagious diseases to Chinese wet markets where exotic and vulnerable species are sold at commercial levels. This deadly disease outbreak is, thus, being seen as an eye opening moment, having the capacity to halt wildlife trade as well as habitat destruction. 

The other linking point between the Coronavirus pandemic and sustainability is the issue of sanitation and hygiene.  Insanitary conditions can be called both a cause and an effect of the pandemic. The connection between unhygienic practices and disease outbreak does not require much explanation, however, the bio-medical waste management and related issues have emerged as a major regulatory hassle in the present day crisis, which are demanding a detailed policy framework for proper management. This also gets reflected in the ‘Goal 6’ of the Sustainable Development Goals (SDGs), established in the year 2015 by the United Nations General Assembly, which talks about ‘Ensuring availability and sustainable management of water and sanitation for all.’

It has further been reported that due to the lockdowns imposed in several nation states, economic and industrial activities came to a complete standstill, which resulted in drastic reduction in greenhouse emissions worldwide. Certain reports were also rejoicing by citing positive signs being shown by ozone layer recovery and giving the Corona pandemic a credit for the same. In those moments of temporary happiness, the years which national jurisdictions spent in implementing the Montreal Protocol on Ozone Depletion were discredited.  Moreover, if latest reports are to be believed catastrophic rise in greenhouse gases has further worsened the condition of ozone levels in the environment. This raises a very pertinent question with respect to how the mankind plans to deal with climate change, because of the simple reason that such arguments are simply based on devaluing persistent application of sustainable governance models, which will not merely improve the degraded environmental conditions but will also result in improvement of living condition of millions of individuals living under perilous circumstances.

*Aaditya Vikram Sharma, Assistant professor, Vivekananda Institute of Professional Studies.

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International Law

Kashmir conundrum and the international law

Abdul Rasool Syed

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The scrapping of article 370 and subsequent annexation and illegal occupation of the state of Jammu and Kashmir by India has once again, brought the seven-decades-old Kashmir issue, a prime cause of friction between two nuclear states India and Pakistan into international limelight. Before this constitutional catastrophe, the state had special status, separate laws, constitution, and flag. This special status has been revoked in utter contravention of UNSC resolutions and international law.

This mala fide move by Modi government is indubitably aimed at eclipsing the importance of the issue of Kashmir by localizing it and thereby   putting it on backburner.  However, the irrefutable fact is that the Kashmir is a disputed territory between India and Pakistan, and recognized as such, without any reservation, by international community.

Amid Indo-Pak partition, Under Article 2 (4) of the independence act of India, the princely states were given choice to join “either of the new Dominions”. While it was an easy decision for some princely states due to their geographical proximity, territorial contiguity or political and religious affiliation of the rulers and subjects, the accession of the State of Jammu and Kashmir emerged as a chronic conundrum and a nuclear flash point between two nuclear countries India and Pakistan.

 To add, in the beginning, the ruler of the state, Maharaja Hari Singh, toyed with the idea of remaining independent. However, Indian machinations spearheaded by Congress leaders including Nehru and Patel created such circumstances for maharaja that left him with no option but to capitulate to their demand of  “ Accession of state of Jammu and Kashmir  to India”.  Hence, Hari Singh, due to unwarranted conditions, forged by the Indian Machiavellian masterminds, had to agree to sign the instrument of accession with India.  Thus, On October 27, 1947, the governor general of India approved the accession with the condition that “as soon as law and order were restored in Kashmir…the question of [the] state’s accession should be settled by a reference to the people [of Jammu and Kashmir].”

The purported Instrument of Accession (which India has failed to produce) denies the authority of any unilateral action by India. The terms of this Instrument would not be varied by any amendment of the Indian Independence Act, 1947 without acceptance of the ruler of the state (clause 5). Further, nothing in the Instrument could have been deemed to be a commitment as to acceptance of any future constitution of India and nothing could affect the sovereignty of the Maharaja over the state (clause 7 and 8).

 So far as the internationalization of the issue of Kashmir is concerned, it is India that took the issue to international forum by knocking at the door of UN security council back in January 1, 1948, resultantly the Council, via UNSCR 38, called upon the contending governments to refrain from aggravating the circumstances and report any material changes on the ground. Thereafter, the Security Council over a number of years issued a total of 17 resolutions on the disputes status of Kashmir. UNSCR 47 of 1948, the most important of roughly all resolutions on kashmir, calls for the resolution of the dispute of Kashmir’s accession to either India or Pakistan through effecting the democratic means of a free and impartial plebiscite.

Simla agreement is another worth quoting document ,deemed as  the premier bilateral accord between the warring nations, it holds that “principles and purposes of the Charter of the United Nations shall govern the relations between the countries”, hence shining light on the validity of the UNSC resolutions on Kashmir. The disputed nature of the issue is further reiterated as, “In Jammu and Kashmir, the Line of Control resulting from the cease-fire of December 17, 1971 shall be respected by both sides without prejudice to the recognized position of either side.

Moreover, the same Simla Agreement also forbids unilateral action to change the status of the state. Clause 1(ii) of the agreement specifically states that neither side shall unilaterally alter the situation. Clause 6 further emphasizes that both the countries should discuss modalities for a final settlement of the state through diplomatic means. Thus, India’s claim that the revocation of Occupied Kashmir’s ‘special status’ is its internal issue negates its commitment under the agreement.

 Additionally, the right of self-determination is the basic principle of the united Nation charter which has been reaffirmed in the universal declaration of human rights, and applied countless times to the settlement of international issues. The concept played significant role in post-world war I settlement, leading for example to plebiscite in a number of disputed areas.

However, in 1945 the establishment of UN gave a new dimension to the principal of self-determination. It was made one of the objectives which the UN would seek to achieve, along with equal rights of all nations.

The principle of self-determination and the maintenance of international peace and security are inseparable. For example, the denial of this right to self-determination to the people of Kashmir has brought the two neighboring countries in South Asia — India and Pakistan to the brink of nuclear catastrophe.

Apart from the specific UN resolutions which guarantee Kashmiris’ the right to self-determination, the UN Charter in Article 1(2) declared one of its purposes as, “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. This serves as the biggest impetus to the said right under international law.

In 1952, the General Assembly further expounded this principle and stated in Resolution 637A(VII), that ‘the right of peoples and nations to self-determination is a prerequisite to the full enjoyment of all fundamental human rights’ and recommended that UN members ‘shall uphold the principle of self-determination of all peoples and nations’. The Declaration on the Granting of Independence to Colonial Countries and Peoples enshrined in GA resolution 1514 of 1960 upheld the right to self-determination. The resolution explicitly says, “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.

What’s more to say is that the principle of self-determination was given overwhelming protection in Article 1 of both International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). In 1966, these two covenants enshrined the self-determination principle verbatim as was laid in GA resolution 1514. The Declaration of Principles of International Law Concerning Friendly Relations (GA Resolution 2625 of 1970) went further in recognizing that peoples resisting forcible suppression of their claim to self-determination are entitled to seek and receive support in accordance with the purposes and principles of the Charter. Since the adoption of the Declaration in 1970, the ICJ has, on a number of occasions, confirmed that the principle of self-determination constitutes a binding norm of customary international law and even a rule of jus cogens- peremptory rule of international law. Thus, international law and the specific UNSC resolutions on Kashmir uphold and provide the Kashmiris with the overriding principle of right to self-determination.

Inter alia, by the revoking the state’s ‘special status’, the situation has now become an ‘occupation’ with an ‘unlawful annexation’. India is an Occupying Power and it has unlawfully annexed the state. From international legal opinion on the issue of self-determination, as developed in the aftermath of the Second World War and the process of decolonization, the fate of millions of people cannot be left to the whims of India. Given the UN General Assembly’s resolution of 1960 concerning Declaration on the Granting of Independence to Colonial Countries and Peoples, the people of Jammu and Kashmir have every right to self-determination.

India has no title on the state under international law. India’s illegal occupation since 1947; denial of the right to self-determination of the people; application of India’s constitution by removing the state’s special status, makes India an Occupying Power and its army a hostile force. The BJP’s recent attempt to include the territory of the state within the Union’s territory of India is an act of ‘occupation’ and ‘illegal annexation.

 While commenting on Article 47 of the Geneva Convention IV, jurist Jean S Pictet explains that the Occupying Power is the administrator of the territory and is under various positive obligations towards the Occupied Population (ie the Occupying Power cannot annex the Occupied Territory or change its political status). Jean elaborates that the Occupying Power must respect and maintain the political and other institutions of the Occupied Territory. Therefore, India being an Occupying Power cannot annex the state’s territory and is bound to keep the state’s institutions and territorial boundaries intact till the conduct of plebiscite under the UNSC resolution 1948.

The International Commission of Jurists has categorically stated that “the Indian government’s revocation of the autonomy and special status of Jammu and Kashmir violates the rights of representation and participation guaranteed to the people [of Jammu and Kashmir] under… international law”.

To cap it all, the world powers should take a leaf from the statement made on June 15, 1962 by American representative to the UN, Adlai Stevenson” the best approach is to take for a point of departure the area of common ground which exists between the parties. I refer of course to the resolutions which were accepted by both parties and which in essence provide for demilitarization of the territory and a plebiscite whereby the population may freely decide the future status of Jammu and Kashmir.”

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International Law

Shari’a Law and Dispute Resolution in the Post-COVID-19 Legal Order

Damilola S. Olawuyi

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Modern societies have for many years evolved efficient methods for resolving legal disputes in a peaceful manner. Litigation in courts, as well as out-of-court alternative dispute resolution (ADR) methods – such as negotiation, mediation, conciliation and arbitration – are popular avenues through which a wide range of commercial and non-commercial disputes are resolved in Qatar and beyond.

However, the ongoing COVID-19 pandemic poses complex and multifaceted challenges to justice delivery systems across the world. History teaches us that in times of global disasters and economic disruptions, such as those triggered by COVID-19, legal disputes significantly increase. These include employment disputes, breach of contract, bankruptcy, insurance claims, family disputes, supply chain disruptions, and more. In light of the impending tsunami of complex legal disputes that could arise post-COVID-19, lawyers and judicial institutions will require support so that they can effectively handle such disputes and not be overwhelmed. In addition to technological, digitalization, financial and infrastructure needs, innovative dispute management mechanisms will be required to avoid institutional gridlock.

The COVID-19 pandemic provides an opportunity to explore how Shari’a law – the principal source of law in Muslim countries – can provide additional and innovative avenues for dispute resolution. For many years, the value of Islamic ADR has been explored in the literature but has not been exhaustively tested. Islamic ADR promotes the resolution of disputes outside of courts, in accordance with the tenets and procedures of Shari’a law. Shari’a-compliant modes of resolving disputes include Muhtasib (use of an ombudsman); Sulh (negotiation, mediation/conciliation); and Tahkim (arbitration). One distinguishing feature of Islamic ADR, as compared to traditional ADR methods, is that parties agree to abide by Qur’anic injunctions and prophetic practice in determining their claims. For example, the Qur’an and Hadith prohibit the levying of interest (riba). In selecting Islamic ADR, parties therefore choose to exclude riba.

In addition to its inestimable moral, cultural and spiritual value, Islamic ADR can provide an alternative legal framework for resolving non-commercial disputes such as family disputes, property and inheritance. The same is also true of small and medium scale entrepreneurial disputes where religious tenets and principles can play a key role in timely, less acrimonious, and cost-effective resolution. In a post-COVID-19 world, Islamic ADR Tribunals can reduce the impending pressure and demand on courts and ADR institutions and allow parties to achieve final and binding resolution in a timely, accessible and cost-efficient manner.

Islamic ADR can be implemented within the framework of existing judicial institutions across the Islamic world. Among the lessons that can be gleaned from countries such as the United Kingdom, Malaysia and Indonesia, where Islamic ADR is already being implemented with varying levels of success, is that the most important first step is to develop clear and comprehensive rules and procedures that provide legal backing and support for Islamic ADR.

For example, the Asian International Arbitration Centre in Malaysia has developed Islamic Arbitration Rules (i-Arbitration Rules), which provide a comprehensive framework of Shari’a-compliant rules and procedures for resolving disputes. An equally important step for fast-tracking the adoption of Islamic ADR is to leverage the existing expertise of arbitrators, practitioners and scholars who are already well versed in the intricacies of ADR, as well as the fundamental principles of law. Such experts can guide the speedy development of tailored Islamic ADR principles and procedures that reflect the rich and diverse legal cultures and traditions across and within Muslim countries.

Higher education institutions also have crucial roles to play in developing innovative programs to train and prepare societies for the emerging legal order post-COVID 19. The College of Law at Hamad Bin Khalifa University (HBKU) is already spearheading innovation in this area. Through its Juris Doctor (J.D.) program, LL.M. in International Economic and Business Law, LL.M. in International Law and Foreign Affairs, as well as the Certificate Program “Law in Practice in Qatar”, students have exceptional opportunities to acquire comparative legal skills and knowledge on the rudiments of ADR and its practical application in their home countries.

This article is submitted on behalf of the author by the HBKU Communications Directorate. The views expressed are the author’s own and do not necessarily reflect the University’s official stance.

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