Author’s: Tanaya Thakur and Amit Kumar*
The office of United Nations High Commissioner for Human Rights (OHCHR) has sought permission from the Supreme Court of India to intervene as amicus curiae in the writ petition dealing with the constitutional validity of Sections 2 and 6 of the Indian Citizenship Amendment Act 2019. No official confirmation of the petition having being filed is available as of yet; but an intervention application is widely being circulated on the internet. The Government of India through the Ministry of External Affairs condemned the OHCHR for interfering in its internal matter, stating that any foreign party does not have any locus standi on matters relating to state sovereignty.
The OHCHR has been established under the mandate of the United Nations General Assembly pursuant to UNGA Resolution 48/141. This resolution mandates that the OHCHR shall work towards promotion and protection of the effective enjoyment of all civil, cultural, economic, political and social rights by all individuals. The OHCHR is bound to respect the sovereignty, territorial integrity and domestic jurisdictions of the state. At the same time, it is also the duty of OHCHR to ensure that state’s fulfill their duty to protect human rights- by playing an active role in removing the obstacles in the way of full realization of human rights and preventing the continuation of human rights violations throughout the world; and by engaging in dialogue with Governments of all states for implementing the OHCHR’s mandate designed to secure respect for human rights.
The submissions made by the OHCHR in its amicus brief regarding questions of equality before law, non-discrimination, permissible differentiation, hold merit and should be given due weight age by the Apex Court. The concept of Public Interest Litigation is a dilution of locus standi; and the question of locus should not arise when sensitive matters of human rights, with international implications are at hand. Allowing the OHCR to act as amicus curiae in the petition would add a much needed dimension to the concept of public interest litigations. It has been through trials and errors that the Apex Court has realized the need for public interest petitions and a diluted understanding of locus has hence developed. Amicus curiae (literally, friend of the court) is a person or body which although not a party to a litigation; assists the court by furnishing information regarding any point of law or fact. As an international body working towards securing human rights obligations around the globe, the OHCHR could provide with expert opinions and insights on questions of human rights; that are allegedly being violated by the CAA. The opinion of an independent body may provide the Court with a fresh perspective to determine whether the CAA is violating international obligations undertaken by India or not. The involvement of OHCHR becomes all the more relevant in the present scenario considering that the CAA deals with issues of international migration from Afghanistan, Pakistan and Bangladesh. Thus, the Act could not only be potentially violating the human rights concepts of equality and non-discrimination; but also the arguably customary international law principles of non-refoulment.
The OHCHR works in close contact with the Human Rights Council, an inter-governmental body within the United Nations responsible for promotion and protection of human rights around the globe. Under the Council’s mandate all UN member states are to participate in a universal periodic review (UPR), where the human rights records of these states are assessed – providing states with an opportunity to improve the implementation of human rights. The OHCHR’s relationship with the HRC gives it an opportunity to study the human rights situations in various nations. Coupled with the fact that it has been established to enhance human rights protection, co-ordinate between international and regional human rights bodies, and engage with states to develop human rights; the OHCHR has the responsibility to ensure that state actions do not result in human rights violations. Under international law, the judiciary is considered to be an organ of the state. Hence, the OHCHR does not exceed its mandate by petitioning to act as amicus curiae in a human rights related matter before the Supreme Court.
The fundamental argument by India against OHCHR is that the Citizenship Amendment Act is a domestic matter and hence should not be interfered with. Ironically, through the Act India could itself be said to violate the principles of non-interference in sovereign matters of other states. The reason provided in the Act for differential treatment to members of certain religious communities from Afghanistan, Pakistan and Bangladesh is that these are minority communities in Islamic states and are often faced with religious persecution. Going by the argument of internal matter; India should not have passed an Act in light of the prosecution of religious minorities in foreign states. However, the question of protection of human rights superseded the issue of non-interference in domestic matters. Similarly, OHCHR’s application for submission of amicus brief should not be considered interference in domestic matter of a sovereign state; rather should be welcomed as a step in enhancing the human rights discourse in the state.
It should also be kept in mind that when a state becomes party to an international agreement, it cedes some part of its sovereignty. As held by the Permanent Court of International Justice (PCIJ) in the SS Wimbledon case; the nature of international law is such that it imposes certain limitations on state sovereignty. What also needs to be appreciated is that the limitation placed on the exercise of sovereign rights is in itself a manifestation of sovereignty. Thus, when India became a party to the United Nations and a signatory to international instruments on human rights, such as, the Universal Declaration of Human Rights (UDHR), its covenants, Convention against Torture, and others; it willingly agreed to abide by the principles laid down in them. If any legislation violates these instruments and has the potential of affecting a large number of people, as in the case of CAA, states cannot claim internal sovereignty as a defence. Moreover, OHCHR’s intervention has been made in India’s domestic forum and the Supreme Court has every right to hear the petition and then decide on merits. Mere intervention as amicus does not bind the Supreme Court to accept each argument put forth by OHCHR. However, an opportunity to be heard should be given to OHCHR considering the gravity of the issue at hand.
The petition not only brings forth pertinent legal issues; but has also presented us with a chance to introspect our own domestic human rights organizations. The arguments put forth in the petition should have come from the National Human Rights Commission (NHRC) which has been mandated to intervene in court proceeding relating to any allegation of violation of human rights. NHRC’s non-intervention in the matter after repeated requests by civil societies and non-governmental bodies symbolizes the failure of domestic machineries placed to secure protection of human rights. Had the domestic machineries been successful in fulfilling their functions, the question of international intervention would not have arisen.
This is not the first time that the OHCHR has intervened in a human rights issue before domestic or regional courts. Previously, the Office has intervened in the Supreme Court of US, UK, Korea, and the European Court of Human Rights in matters of human rights. Intervening as amicus has gradually become a mechanism for communicating the international aspects of human rights to states. The interventions have also at times helped in furthering human rights discourse. Through the petition, OHCHR has done nothing more than remind India of its international obligations. The Indian Constitution through Article 51 itself directs India to foster respect for international law and treaty obligations. By accepting the application and considering it on merits, the Supreme Court has an opportunity to analyze international human rights dimensions that could otherwise have gone ignored. The question of locus standi should not stand in the way of developing a better human rights protection mechanism in the country and the Supreme Court as the custodian of the Constitution should not shy away from developing a more inclusive human rights jurisprudence.
*Authors are Research Scholars at, IIT Kharagpur (RGSOIPL). They have completed their masters in international law from South Asian University, New Delhi.
Carl Schmitt for the XXI Century
For decades, the scholars of international relations have confused the term “New World order” in the social, political, or economic spheres. Even today, few scholars confuse the term with the information age, internet, universalism, globalization, and American imperialism. Unlike the complex categorization of the New World Order, the concept of the Old World Order was purely a juridical phenomenon. However, from standpoint of modernity, the term New World order is a purely ideological and political phenomenon, which embodies various displays such as liberal democracy, financial capitalism, and technological imperialism.
In his Magnus Opus “The concept of the Political”, Carl Schmitt lauded a harsh criticism on liberal ideology and favored competitive decisionism over it. This is why according to Schmitt’s critics; the whole text in “The concept of the political” is filled with authoritarian overtones. Nonetheless, the fact cannot be denied that it was the radical political philosophy of Carl Schmitt that paved the way for the conservative revolution in Europe. Even today, his writings are being regarded as one of the major contributions to the field of political philosophy from the 20th century.
Throughout his major works such as “Nomos of the earth”, “the Crisis of Parliamentary democracy”, “The concept of the Political” and “Dictatorship”, Carl Schmitt frequently employs unadorned terms such as ‘actual’, ‘concrete’, ‘real’, and ‘specific’ to apprize his political ideas. However, he advances most of the core political ideas by using the metaphysical framework. For instance, in the broader political domain, Carl Schmitt anticipated the existential dimension of the ‘actual politics’ in the world today.
On the contrary, in his famous work “The Concept of the Political” readers most encounter the interplay between the abstract and ideal and, the concrete and real aspects of politics. Perhaps, understanding of Schmitt’s discursive distinctions is necessary when it comes to the deconstruction of the liberal promoted intellectual discourse. However, the point should be kept in mind that for Schmitt the concept of the political does not necessarily refer to any concrete subject matter such as “state” or “sovereignty”. In this respect, his concept of the political simply refers to the friend-enemy dialectics or distinction. To be more precise, the categorization of the term “Political” defines the degree of intensity of an association and dissociation.
In addition, the famous friend-enemy dialectics is also the central theme of his famous book “The Concept of the Political”. Likewise, the famous friend-enemy distinction in Schmitt’s famous work has both concrete and existential meaning. Here, the word “enemy” refers to the fight against ‘human totality”, which depends upon the circumstances. In this respect, throughout his work, one of the major focuses of Carl Schmitt was on the subject of “real Politics”. According to Schmitt, friend, enemy, and battle have real meaning. This is why, throughout his several works; Carl Schmitt remained much concerned with the theory of state and sovereignty. As Schmitt writes;
“I do not say the general theory of the state; for the category, the general theory of the state…is a typical concern of the liberal nineteenth century. This category arises from the normative effort to dissolve the concrete state and the concrete Volk in generalities (general education, general theory of the law, and finally general theory of the knowledge; and in this way to destroy their political order”.
As a matter of the fact, for Schmitt, the real politics ends up in battle, as he says, “The normal proves nothing, but the exception proves everything”. Here, Schmitt uses the concept of “exceptionality” to overcome the pragmatism of Liberalism. Although, in his later writings, Carl Schmitt attempted to dissociate the concept of “Political” from the controlling and the limiting spheres but he deliberately failed. One of the major reasons behind Schmitt’s isolation of the concept of the political is that he wanted to limit the categorization of friend-enemy distinction. Another major purpose of Schmitt was to purify the concept of the “Political” was by dissociating it from the subject-object duality. According to Schmitt, the concept of the political was not a subject matter and has no limit at all. Perhaps, this is why Schmitt advocated looking beyond the ordinary conception and definition of politics in textbooks.
For Schmitt, it was Liberalism, which introduced the absolutist conception of politics by destroying its actual meaning. In this respect, he developed his very idea of the “Political” against the backdrop of the “human totality” (Gesamtheit Von Menschen). Today’s Europe should remember the bloody revolutionary year of 1848 because the so-called economic prosperity, technological progress, and the self-assured positivism of the last century have come together to produce long and deep amnesia. Nonetheless, the fact cannot be denied that the revolutionary events of1848 had brought deep anxiety and fear for the ordinary Europeans. For instance, the famous sentence from the year 1848 reads;
“For this reason, fear grabs hold of the genius at a different time than it does normal people. the latter recognizes the danger at the time of danger; up to that, they are not secure, and if the danger has passed, then they are secure. The genius is the strongest precisely at the time of danger”.
Unfortunately, it was the intellectual predicament at the European stage in the year 1848 that caused revolutionary anxiety and distress among ordinary Europeans. Today, ordinary Europeans face similar situations in the social, political, and ideological spheres. The growing anxieties of the European public consciousness cannot be grasped without taking into account Carl Schmitt’s critique of liberal democracy. A century and a half ago, by embracing liberal democracy under the auspices of free-market capitalism, the Europeans played a pivotal role in the self-destruction of the European spirit.
The vicious technological drive under liberal capitalism led the European civilization towards crony centralism, industrialism, mechanization, and above all singularity. Today, neoliberal capitalism has transformed the world into a consumer-hyped mechanized factory in which humanity appears as the by-product of its own artificial creation. The unstructured mechanization of humanity in the last century has brought human civilization to technological crossroads. Hence, the technological drive under liberal democratic capitalism is presenting a huge threat to human civilizational identity.
 Wolin, Richard, Carl Schmitt, Political Existentialism, and the Total State, Theory and Society, volume no. 19, no. 4, 1990 (pp. 389-416). Schmitt deemed the friend-enemy dialectics as the cornerstone of his critique on liberalism and universalism.
Democratic Backsliding: A Framework for Understanding and Combatting it
Democracy is suffering setbacks around the world. Over the past decade, the number of liberal democracies has shrunk from 41 to 32. Today, 34 percent of the global population lives in 25 countries moving in the direction of autocracy. By contrast, only 16 countries are undergoing a process of democratization, representing just 4 percent of the global population. Reflecting these troubling trends, USAID Administrator Samantha Power, during her confirmation hearing, highlighted democratic backsliding – along with climate change, conflict and state collapse, and COVID-19 – as among the “four interconnected and gargantuan challenges” that will guide the Biden Administration’s development priorities.
However, defining “democratic backsliding” is far from straightforward. Practitioners and policymakers too often refer to “democratic backsliding” broadly, but there is a high degree of variation in how backsliding manifests in different contexts. This imprecise approach is problematic because it can lead to an inaccurate analysis of events in a country and thereby inappropriate or ineffective solutions.
To prevent or mitigate democratic backsliding, policymakers need a definition of the concept that captures its multi-dimensional nature. It must include the actors responsible for the democratic erosion, the groups imperiled by it, as well as the allies who can help reverse the worst effects of backsliding.
To address this gap, the International Republican Institute developed a conceptual framework to help practitioners and policymakers more precisely define and analyze how democratic backsliding (or “closing democratic space”) is transpiring and then devise foreign assistance programs to combat it. Shifting away from broad generalizations that a country is moving forward or backward vis-à-vis democracy—which makes it difficult, if not impossible, to derive specific solutions—the framework breaks closing democratic space into six distinct, and sometimes interrelated, subsectors or “spaces.”
Political/Electoral: Encompasses the arena for political competition and the ability of citizens to hold their government accountable through elections. Examples of closing political or electoral space range from fraudulent election processes and the arrest or harassment of political leaders to burdensome administrative barriers to political party registration or campaigning.
Economic: Refers to the relationship between a country’s economic market structure, including access and regulation, and political competition. Examples of closing economic space include selective or politically motivated audits or distribution of government licenses, contracts, or tax benefits.
Civic/Associational: Describes the space where citizens meet to discuss and/or advocate for issues, needs, and priorities outside the purview of the government. Examples of closing civic or associational space include harassment or co-optation of civic actors or civil society organizations and administrative barriers designed to hamper civil society organizations’ goals including limiting or making it arduous to access resources.
Informational: Captures the venues that afford citizens the opportunity to learn about government performance or hold elected leaders to account, including the media environment and the digital realm. h. Examples of closing informational space consist of laws criminalizing online speech or activity, restrictions on accessing the internet or applications, censorship (including self-censorship), and editorial pressure or harassment of journalists.
Individual: Encapsulates the space where individuals, including public intellectuals, academics, artists, and cultural leaders– including those traditionally marginalized based on religious, ethnicity, language, or sexual orientation–can exercise basic freedoms related to speech, property, movement, and equality under the law. Common tactics of closing individual space include formal and informal restrictions on basic rights to assemble, protest, or otherwise exercise free speech; censorship, surveillance, or harassment of cultural figures or those critical of government actions; and scapegoating or harassing identity groups.
Governing: Comprises the role of state institutions, at all levels, within political processes. Typical instances of closing the governing space include partisan control of government entities such as courts, election commissions, security services, regulatory bodies; informal control of such governing bodies through nepotism or patronage networks; and legal changes that weaken the balance of powers in favor of the executive branch.
Examining democratic backsliding through this framework forces practitioners and policymakers to more precisely identify how and where democratic space is closing and who is affected. This enhanced understanding enables officials to craft more targeted interventions.
For example, analysts were quick to note Myanmar’s swift about-face toward autocracy. This might be true, but how does this high-level generalization help craft an effective policy and foreign aid response, beyond emphasizing a need to target funds on strengthening democracy to reverse the trend? In short, it does not. If practitioners and policymakers had dissected Myanmar’s backsliding using the six-part framework, it would have highlighted specific opportunities for intervention. This systematic analysis reveals the regime has closed civic space, via forbidding large gatherings, as well as the information space, by outlawing online exchanges and unsanctioned news, even suspending most television broadcasts. One could easily populate the other four spaces with recent examples, as well.
Immediately, we see how this exercise leads to more targeted interventions—support to keep news outlets operating, for example, via software the government cannot hack—that, collectively, can help slow backsliding. Using the framework also compels practitioners and policymakers to consider where there might be spillover—closing in one space that might bleed into another space—and what should be done to mitigate further closing.
Finally, using this framework to examine the strength of Myanmar’s democratic institutions and norms prior to the February coup d’etat may have revealed shortcomings that, if addressed, could have slowed or lessened the impact of the sudden democratic decline. For example, the high-profile arrest of journalists Wa Lone and Kyaw Soe Oo in December 2017 was a significant signal that Myanmar’s information space was closing. Laws or actions to increase protections for journalists and media outlets, could have strengthened the media environment prior to the coup, making it more difficult for the military to close the information space.
A more precise diagnosis of the problem of democratic backsliding is the first step in crafting more effective and efficient solutions. This framework provides practitioners and policymakers a practical way to more thoroughly examine closing space situations and design holistic policies and interventions that address both the immediate challenge and longer-term issue of maintaining and growing democratic gains globally.
Authentic Justice Thus Everlasting Peace: Because We Are One
The ceasefire in the Israeli-Palestine conflict is a good thing. We thank God for it. Be it between two individuals or institutions or nations or the internal colonial and colonized, war does not do anything except cause more immediate or future mass misery and human destruction. Our continued memories of our interpersonal and international and internal colonial and civil wars and the memorials we erect to remember them recall and record wounds and pains we never get over.
So it becomes a bothersome puzzle as to why we human beings still just don’t get that war like oppression leads to nowhere except to more human devastation. And we should have learned by now but have not that peacemaking like ceasefires mean nothing without justice.
It is the reason why I constantly find myself correcting those who stress Peace and Justice.No Justice No Peace is more than a cliche.It is real politic emotionally, economically, socially, and spiritually.
Our American inner cities like those in every continent where culturally different and similar people live cramped impoverished lives and nations and colonial enclaves with such unequal wealth remind us of their continued explosive potentialities when peace is once again declared but with no justice.Everyone deserves a decent quality of life which not only includes material necessities but more importantly emotional and spiritual freedoms and other liberations.Not just the victors who conquer and rule and not just the rich and otherwise privileged.
And until such justices are assured to everyone peacemaking is merely a bandaid on cancerous societal or International conflictual soars which come to only benefit those who profit from wars which are bound to come around again when there is no justice and thus peace such as family destroying divorce lawyers, blood hungry media to sell more subscriptions , arms dealers to sell more murderous technologies, politicians needing votes so start and prolong wars, and military men and women seeking promotion while practicing their killing capacities.
So if those of us who devoutly practice our faiths or our golden moral principles, let us say always and pray and advocate justice and peace always as a vital public good and do justice then lasting peace in our personal lives and insist that national leaders, our own and others do the same in their conduct of international affairs and affairs with those who are stateless in this global world.
All such pleading is essential since we are all brothers and sisters in the eyes of God who created all of us in God’s image as one humanity out of everlasting divine love for all of us so we should love each other as God loves all of us leading to desiring justice and thus lasting peace for each and every one of us.
This is difficult for those in international affairs to understand who take more conventional secular approaches to historical and contemporary justice and peace challenges as if our universal spiritual connectivennes ( not to be confused with the vast diversity of organized religions)as human beings which makes us all brothers and sisters has no relevance. But if we are going to find true enduring peace we have no alternative but to turn our backs on increasingly useless secular methods which go either way, stressing peace then justice or justice then peace and understand how much we must begin to explore and implement approaches which we look at each other as spiritually connected brothers and sisters in which it is the expectation that peace only comes and lasts when through the equal enjoyment of justices for every human being, we restore our universal kindred rooted in the everlasting love of God and thus for each other, no matter the different ways in which we define God or positive moral principles which originate in understandings that we human beings in all our diversities are one and thus brothers and sisters.
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