Category: Suggestions

Uniting for peace as a solution to Syrian issue

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The image of Aleppo kid, bloodied and covered with dust, sitting silently in an ambulance awaiting help as another stark reminder of the toll of the war in Syria has not vanished from our minds. The UN Security Council has failed to bring peace in Syria. In almost six years of conflict, close to half a million people have been killed and eleven million have been forced to leave their homes. Most recently, the Syrian and Russian governments and their allies have carried out unlawful attacks on eastern Aleppo with scant regard for some 250,000 civilians trapped there. The article will give a brief overview of what the “uniting for peace” is and if this resolution will serve as a way out to this situation.

The creators of the United Nations Charter conceived that five countries namely China, France, USSR [which was succeeded in 1990 by the Russian Federation], the United Kingdom and the United States, because of their key roles in the establishment of the United Nations, would continue to play important roles in the maintenance of international peace and security. For this purpose the “power of veto” was introduced in Article 27 of the UN Charter by which it was agreed by the drafters that if any one of the five permanent members cast a negative vote in the 15-member Security Council, the resolution would not be approved.

All five permanent members have exercised the right of veto at one time or another[1]. Over the last 20 years out of a total of 24 vetoes, 15 have been used by the USA to protect Israel[2]. The UK used the veto unilaterally seven times because of Rhodesia later to become Zimbabwe. France subsequently used the threat of a veto to support Morocco’s position in the Western Sahara conflict. The representative of the government of the Republic of China used the veto to block the Mongolian People’s Republic’s application for membership in 1955 because the ROC considered Mongolia to be a part of China. This postponed the admission of Mongolia until 1960[3]. The above practices of the permanent members show that they have used the power of veto in accordance with their national interest, more often resulting in a deadlock making the Security Council unable to fulfill its responsibility.

In 1950, the most pressing issue on the international agenda was the war in Korea. The Soviet Union, using its veto power, repeatedly blocked action by the Security Council, thus preventing the Council from taking any measures to protect the Republic of Korea against the aggression launched against it by military forces from North Korea. It was against this backdrop that the United Nations General Assembly adopted a historic resolution, 377 A (V), titled “Uniting for Peace” in November 1950[4]. Resolution 377 (A) read:

“if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to make the appropriate recommendations to Members for collective measures, including in the case of a breach of the peace, or act of aggression to use armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within 24 hours of the request thereof. Such emergency special session shall be called if requested by the Security Council on a vote of any seven (now nine) members, or by a majority of the United Nations[5]. Therefore, when the permanent members of the Security Council find themselves at odds and fail to reach unanimity on a matter that appears to be a threat to international peace and security, this resolution authorizes the General Assembly to immediately consider that matter and issue its own “appropriate recommendations” to the Member States “for collective measures”. Those collective measures can include “the use of armed force when necessary.”

On April 18, 2016, Mr. Monzer Makhous, member of the Syrian National Council and High Negotiations Committee (HNC) spokesperson told Asharq Al-Awsat that “current events confirm that the ‘uniting for peace’ resolution is the most effective solution for a serious settlement for the Syria crisis. Mr. Makhous added that the world will not stand idle before Russia’s continuous exploitation of its right to veto[6]”.

The “Uniting for Peace” procedure is unquestionably a legally valid alternative for the deadlock at the Security Council with respect to the Syrian issue. The “Uniting for Peace” procedure would allow the Assembly to recommend a range of other coercive measures, including sanctions. Beyond enforcing the ban on the use of chemical weapons, this would empower the General Assembly to back up its numerous calls for a political solution to the conflict and for better humanitarian access with more tangible and enforceable measures. Although these measures would remain nonbinding, and their implementation depend on the good will of member states, it would equip them with the legality and international legitimacy that is lacking absent a strong resolution by the Security Council.

[1] United Nations, Security Council viewed at http://www.un.org/en/sc/

[2] Sahar Okhovat, The United Nations Security Council: Its Veto Power and Its Reform, December (2011)

[3] Aleksandra Czajka, The analysis of the Veto Power in the United Nations Security Council, Pompeu Fabra University Barcelona, November, (2011)

[4] Aaron Jacob, Unilateral Declaration Of An Independent Palestinian State And The Procedure Of ‘Uniting For Peace’, September (2011)

[5] The General Assembly Res. 377A(V), 3 November (1950)

[6]Fatah Al-Rahman Youssef,  Syria’s HNC to Resort to U.N. Resolution ‘Uniting for Peace’, 16 October (2016)

About the author

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Miracline Paul Susi.T is a 4th-year law student at School of Law, SASTRA University. She is deeply passionate about law. She strongly believes that the legal profession has the power and the responsibility to effect changes to the on-ground realities and difficulties that multiple communities face. Miracline’s keen interest in social works is evident from her service at SASTRA Legal Aid Society. She believes that the knowledge in law is vital for all and sundry who is bound by it. Her writing skills may be confirmed from her articles in Kerala High Court Journal, Taxmann and International Journal of Enviro Legal Research.

Outer Space – The scope of Laws

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This article has been written by Eashwari Nair. Eashwari is currently a student in Symbiosis Law School, Hyderabad.

1. THE CONCEPT OF SPACE LAW

The robust development of the space industry has called upon the domain of law in order to regulate and maintain order within the field.  It has been seen so far that every domain where law has played a role there has been a specific vicinity to which it applies, but it is seen that this very domain doesn’t seem to.  The fact that the jurisprudence is in question can be understood by the fact that there has been no uniform acceptance on the definition of “outer space”. Thereby the jurisprudence of space activities seems to be highly challenging.

This field of law seems to be highly intriguing and triggers several questions since there is no boundary been put with respect to the subject itself.

2. A BRIEF UNDERSTANDING OF THE ORIGIN OF SPACE LAWS.

This very part of law opened up when the first artificial satellite in 1957 built by the Soviet Union Sputnik was launched. This event directed the United nations to create an organisation that deals with the sector of space age. The department in charge also referred to as The Committee on peaceful useful uses of outer space.(COPUOS).  With respect to the creation of the mentioned organisation , the 103  member nations [1] had negotiated 5 major agreements or treaties that serve as fundamentals when it comes to rules and regulations in the atmosphere of international law spoken in relation to space law. The 5 major treaties that were formulated are listed as follows:-

  1. The outer space treaty
  2. The Rescue Agreement
  3. The liability Convention
  4. The registration Convention
  5. The moon treaty.

The above listed agreements were formulated keeping the following parameters in mind.

  1. The non – appropriation of outer space by any country
  2. Arms control
  3. Freedom of exploration
  4. Liability for damage caused by space objects
  5. Safety and Rescue of spacecrafts and astronauts
  6. Harmful interference with space activities and the effect caused to the environment.

Various countries ever since the emergence of the first artificial satellite have taken the task of exploration of this other dimension of the world. This trend of exploration has lead to a new field of work and now has called upon the gods of law to help develop this field in a regulated manner.

3. INDIA AND SPACE LAW

Not many countries have seen to be actively taking part in this expensive field of exploration, and the nations that do have significantly contributed to our understanding of this fascinating concept of what lies beyond planet earth. Since the enthusiastic participation is limited, few countries such as Russia , Japan and The United States have taken initiative in the creation of laws and legislations that help the industry to function smoothly.

Where does India stand in all of this? The Indian Space Research Organisation (ISRO) has done a phenomenal job in making India a signatory among one of the elite space-faring nations. Especially the year 2016 has seen this organisation dominating the channels of news when it came to science and space.  And in order to not just keep this industry thriving but to encourage it as well, certain guidelines must be set in the form of a legislation in order to also open up the possibility of private entities entering into the field of space. Like the other well-to-do nations in this field regulated and governed by their respective national laws, India as a nation must formulate, codify and implement a legislation that will encourage this industry. [2]

As  a nation that seems to be the Emerging global space power, there is heavy emphasis on the codification of laws that guide the nation to continue to make strides in this field. Our codification should include but not be restricted to the following aspects:-

  1. The aspect of launch services( to introduce private companies and regulate them)
  2. Satellite Communications and broadcasting
  3. Analysis of observation and the distribution of this very observation.
  4. IPR regime and the transfer of technology
  5. The aspect of safety of space activity
  6. Liability and Responsibility
  7. The concept of Insurance
  8. There is also scope for the possibility of space tourism in the future.

We as a nation when it comes to space, satellites etc legally speaking currently base the regulations fundamentally on the principles put forth in the constitution of India. Furthermore it is seen that space and the inventions that the curiosity with respect to space ignites holds strategic significance from the eyes of the military. [3]

Also as students of law ,  we should take the initiative to explore and understand this field that has been devoid of active participation.

[1] The numerical estimate is to the number of member countries is subjected to correction.

[2] It is seen that national interests always outweigh the international interests especially with respect to international laws.

International laws with respect to space are seen to be very ineffective, since the issues addressed are not only few in number , but lacks variety of coverage.

[3] There could be the possibility of a space war in the future ( though this may seem to be a derivative of fiction)

The December book bucket

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Is collective security a solution to violent conflicts?

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This article has been written by Eashwari Nair. Eashwari is currently a student in Symbiosis Law School, Hyderabad.

BACKGROUND

As the rate at which violence escalates in the valleys of northern side of India via attacks such as in Uri, Nagrota etc calls for the need of implementation of law.  This bloodshed seems to be from one perspective the resultant  of the breakdown of  the machinery of law and order along with the emergence of an “unofficial war” .

Does there exist scope to revive some sort of sense in maintaining peace and order? Fortunately, it does.  Although the scope of the topic we will be dealing with seems to be up till now tending towards the theoretical side of the line of implementation and is highly broad in nature to discuss, few instances in history do support the success of the principle. What is this principle i repeatedly dearest reader emphasise on? This theory usually tends to fall under the ambit of the field of International Law, this theory in discussion is known as Collective Security which is based on the doctrine to protect.

THE THEORY OF COLLECTIVE SECURITY:-

Before we briefly dive into the finer details of the what collective security is, we must understand is to why this principle is called into the question of implementation? This universal theory can be applied in an area of conflict to ideally resolve ( best case scenario) but at least control the rate at which violence occurs or to reduce the actions performed in further pursuance  of causing violence.

Now to  the real question i.e  what is collective security?   The textbook definition would read as  The cooperation of several countries in an alliance to strengthen the security of each[1].  The following set of words will add to your understanding i.e

  1. A broad concept linked to Conflict prevention
  2. With the ultimate aim of Peace Enforcement
  3. In order to achieve the above the attempt to practice crises management is seen.

The Requirements of Collective Security[2]

The usage of this concept demands certain parameters to be filled  as follows:-

  1. The establishment of an institutional system[3]:-
    There must be a certain institutional framework that must be created in order to begin the operation of this principle.
  2. The Nature of power[4]
    The agents that are allotted responsibility in order of the functioning of this principle must be given power in such a manner that is balanced in nature, which will cease to exist since in every organisation it is seen that some special power of authority is seen to be vested in a few, for example the presence of the P-5 members.
  3. The acceptance of indivisibility of Peace[5]
    It must be slowly coded into the system that one nation’s threat to security must be seen as the threat to security which is compromised with respect to the international community as a whole. The vested international interests must hold a higher precedence over national interests with respect to the maintenance of peace .

Now the next thing in line to understand is dearest reader is does this principle hold a certain binding force upon the nations that exist? It is known for a fact that every nation will first cater to it’s needs before considering the other nations as such and hence if this principle had no mention anywhere the attempt to practice it would not have even come to play , but the fact that there have been attempts as seen  in history means that there exists some sort of documentation or codification of this theory which is briefly dealt in the following section.

THE UNITED NATIONS CHARTER AND COLLECTIVE SECURITY

The members of the United  Nations are  generally supposed to[6] follow the rules and regulations set in the form of the codified version of rules and regulations put forth in the UN charter. Now with respect to our topic of discussion , chapter 7 of the UN charter, to be specific begins with article 39 that is, to quote “Threats to peace and breaches of peace and acts of aggression”.

  1. Why the codification of such a principle?
    The violations such as the ones currently  taking place between India and Pakistan occurred in other forms across the world and the resultant that was the loss of lives across the world were numerous in number. But 3 major events played a significant role in the codification of this concept , they were as follows:-

    1. Response that was generated against the Korean Agression[7]
    2. Uniting for Peace Resolution [8]
    3. The Emergence of the UN Peace keeping.
  2. The Actors[9] involved:-
    Responsibilities were given to certain entities to perform their functions in order to maintain the standard formula of “INTERNATIONAL PEACE”. These actors or agencies trusted with such responsibilities to do so are regional bodies ,third parties are assigned to mediate and negotiate and come to terms,  the UN general council and more importantly the UN security council.

THE NEED TO TAKE INITATIVE:-

And hence dearest reader can collective security extinguish wars as such?   Probably not completely but the side effects such as tensioned relations, casualties etc can definitely be reduced. Utilising the current concept which is in existence or the devising new methods as well must be encouraged in order to attempt to reduce the intensity of conflict. This principle though seen to be a principle which is supported with a just about average success rate, in today’s age and era where everything is changing at an exponential rate, the scope of its success has increased.

CONCLUSION:-

The introduction dearest reader , to this very concept does just doesn’t call out for a solution but opens up scope for a branch of law with respect to the scope of the armed forces, military actions and so much more.

[1] Google definition of collective security

[2] The reason this principle hasn’t come into play practically speaking is because at every stage, none of the given criteria is satisfied.

[3] The reason of failure 1:- although established framework, it has no external force of binding to a high degree which compels the nation to stick to the international guideline.

[4] The reason of failure 2:- The amount of power given will never be fair and square, based on various reasons there will be imbalance of power of authority that exists.

[5] The reason of failure 3:-  No country no matter the amount of generosity displayed shall put it’s national interests as a secondary objective with respect to international interests at hand.

[6] The P-5 nations generally tend to deviate from the prescribed structure of the obligation to follow the defined ruls.

[7] Where North Korea invaded South Korea in 1950, that lead the council to undertake military enforcement.

[8] Forces were deployed to maintain tranquillity in previously warring factions, example the creation of UNEF, to onitor ceasefire violations between Israel and Egypt.

[9] Refering to implementators.

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Aspiring for Ideal Judiciary

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This article has been written by Sonali Srivastava. Sonali is currently a third-year student in National Law University Odisha.

Again step towards improvement in ensuring justice was made redundant by Supreme Court. Strengthening and polishing the façade of Basic structure of Indian Constitution cannot provide solution for the upcoming skepticism regarding judicial appointment. Constantly rejecting the arguments regarding establishment of Independent Judicial Appointment body or commission, and taking shelter of basic structure of constitution i.e primacy of the judiciary in judges’ appointments, is portraying insecurities and fear of political or executive intervention.

Instances where judge of high court has been elevated to Supreme court simply because being business partner of the son of a former Chief Justice of India or the sister of a former CJI was appointed to Calcutta High Court when allegedly there were much qualified and experienced judges were denied the appointment or Many judges were appointed to the Supreme Court by the Collegium despite the Intelligence Bureau (IB) giving an adverse report on them, gave rise to urgent need to solve much culminated problem in Indian Judiciary. Controversy was again triggered when Justice J. Chelameswar, lone dissenter in the NJAC judgment by writing to the Chief Justice his decision to skip Collegium meetings till a transparent mechanism is ushered in.

The reason behind rejecting the NJAC Act is that it was passed by parliament and judiciary does not want to weaken its supremacy over judicial appointments by giving significant role to executive in appointing judges for higher judiciary. Enforcing principle of separation of Judiciary from executive mentioned in Art 50 of Indian constitution. But there is a need for Independent body to eliminate nepotism and favoritism existing in collegiums system. As Seniority needs to be respected but merit cannot be compromised in appointment of judges.

Recent dismissal of PIL from National Lawyer’s Campaign for judicial transparency and reform depict Supreme Court is still reluctant to bring any improvement in judicial appointment mechanism.  Petition emphasized on establishment of Judicial Appointment Commission for judges appointment, free from both executive and judiciary control. Mechanism will try to limit the zone of consideration of judgeship to the few powerful and privileged who have either political connection, who are well-heeled or who have their kith and kin in the higher echelons of the judiciary.

The notoriety surrounding our judges has snowballed with time. India’s judicial system is crippled to the verge of being non-existent; one would expect that the Independent organization would have been welcomed by all.

Supreme Court is loaded with multiple pleas coming which argued against the implementation of the NJAC or an independent body to govern judicial appointments. This has led to a situation where the judges, who can themselves be regarded as a party in the issue, are adjudicating upon its validity. Nemo judex in causa sua (or nemo judex in sua causa) is a Latin phrase that means, literally, “no-one should be a judge in his own cause.” It is a principle of natural justice that no person can judge a case in which they have an interest. So somehow principles of Natural Justice come in conflict with Supreme Court decision in this regard.

 Recommendation by the Venkatachaliah Commission can help immensely in setting up of independent body consisting up of five member body of three judicial and two non-judicial members consisting of the Hon’ble CJI and two senior most judges of the apex court, the Minister of Law & Justice and an eminent person.

In my opinion in order to refine recommendations, eminent jurist must replace eminent person and that on recommendation of CJI, Prime Minister and Leader of Opposition, selection of eminent jurist must be made. It is necessary “to secure a selection from a diverse and wider pool of candidates, so as to get a fair and non-discriminatory selection and to ensure public at large that the judges adjudicating upon their cases and determining their rights are selected in the fairest possible way.

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Educational Qualification as a basic criterion for Election

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This article has been written by Mohini Singla. Mohini is currently a student in Army Institute of Law, Mohali.

“Education is the most powerful weapon which you can use to change the world.”

– Nelson Mandela

In India, it is the need of the hour to introduce educational qualification to be set as criteria for the elections of Members of Parliament. The eligibility criteria for contesting MP election by providing that a candidate must have passed class 10 of the board of secondary education or its equivalent. This condition to contest election is not arbitrary in nature and thus does not affect anyone’s right to contest elections. This criterion is to be set initially only for Members of Parliament as they are the principal law-makers of the state so a state needs intelligent administrators to run its government. It is not arbitrary as Article 14 is not affected as there is reasonable classification. As Right to contest election is merely a statutory right and not fundamental right.

RECOMMENDATION

  1. It should be started with the Members of Parliament as it could not be started from ground level, as due to still prevailing illiteracy in the country. But for election of such high standard officials this criteria could easily be implemented in the country. This criterion should then slowly be formed basis of election in every sphere and a minimum level should be set up for every general election taking place in the
  2. It will motivate people at all levels to get educated as it will act as a reformative measure. Everyone in the country will try and get education and especially people who want to get into politics will get educated first. Education enhances a person’s ethics and civilizes a person as well. A civilized society fastly moves towards development. Hence this will lead to easy development of the nation. It will act as a reform and will act as a stimulator for people to get them educated first and then enter into
  3. It should initially be set at matriculation level as somewhere the bench mark has to be set and anything lower to this will lead to complete ineffectiveness of the programme and anything higher to such is not possible to be achieved at such a level. As India still faces a lot of problem of illiteracy which could not be instantly sorted. It has been a issue for decades but such a reform will help people and motivate them to act for the
  4. This Criterion should then slowly be added to all other election procedures. All elections if have such qualification criteria would enhance the education standards of the State. This will lead to growth and prosperity of the nation and will help in building better future for
  5. This qualification if added would enhance the quality education as there is a lot of problem of proper education system to be developed this will fulfill this requirement. As politicians are the ones who frame new policies, they will take special care for educational

Indian government would look into education systems and make sure these inconveniences are covered up sufficiently. On the other hand, we can find people who are serious in their thoughts to fill in these issues and promote the quality of each educational institution. We can find the growing number of Computer study centres, students’ labs, tutorial institutes etc. that makes education in India move on faster. And this will lead to quality education in the country and would render some new changes to the education system that is required in the present scenario.

Marital Rape in India

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This article is written by Shreya Bansal. Shreya is a commerce graduate from Shri Ram College Of Commerce and is currently pursuing Bachelors Of Law from Faculty Of Law, DU.

 

In India marriage is considered as the sacred solemnization of a perpetual bond, not just between two individuals but between two families. Ever since a girl child is born in a household, her parents eagerly await for the day on which they can perform her “kanyadaan” which in literal sense means to give away the daughter as a form of charity.

Well, this brings light on the fact that our country is restrained by the shackles of a patriarchal mindset where a woman is given the second gender status and not considered as a counterpart. As per historical studies, a girl before her marriage was considered as a “property” of her father, post which she is transferred to her husband as her guardian which gives him the absolute right of control over his wife’s body and mind.

Behind the closed doors of many Indian households, women are subject to brutalities of their husbands. Marital rape is one such form of a barbaric activity which sadly is derecognized by the law of our country. Marital rape basically takes place when a husband either uses force or threatens to use force on his wife or takes her consent by coercion to have sex with her. So it means that marriage is a contract between these two individuals where the consent of the wife to bow in front of the whims and fancies of her husband is implied. An English judge from the 17th Century claimed:

Behind the closed doors of many Indian households, women are subject to brutalities of their husbands. Marital rape is one such form of a barbaric activity which sadly is derecognized by the law of our country. Marital rape basically takes place when a husband either uses force or threatens to use force on his wife or takes her consent by coercion to have sex with her. So it means that marriage is a contract between these two individuals where the consent of the wife to bow in front of the whims and fancies of her husband is implied. An English judge from the 17th Century claimed:

So, it means that marriage is a contract between these two individuals where the consent of the wife to bow in front of the whims and fancies of her husband is implied. An English judge from the 17th Century claimed:
“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”As per Section 375 of the Indian Penal Code (IPC), forced sex in marriages is considered as a crime only when the wife is below age 15. The law of our country does not admit a rape committed by a husband with his wife as a crime, thus discriminating on the basis of

As per Section 375 of the Indian Penal Code (IPC), forced sex in marriages is considered as a crime only when the wife is below age 15. The law of our country does not admit a rape committed by a husband with his wife as a crime, thus discriminating on the basis of marital status of the people.

A senior government official said in a written statement to India’s upper house of Parliament, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context.” As per the lawmakers of our country, the reasons because of which marital rape is not considered a crime in India is due to prevailing illiteracy, poverty, religious beliefs, social customs etc. which do not restrain the western world where it has been criminalised.

Apart from the patriarchal form of the society in which we all live in, women also a have big role behind this laxity of the government for not criminalizing marital rape. Firstly, our Indian women are devoted wives who would not leave any stone unturned to make sure that their marriage works out. They are ready to face all the brutalities of their husbands for the sake of their children, parents, and the fear of the society.

Secondly, the concept of marital rape is still unknown in India. While some women are not aware of it and believe that it is their conjugal duty to have intercourse with their husbands whenever they demand so without having the right to say no. Also, some might use it as a weapon to avenge their husbands even for small and petty fights between them.

The remedies today available to a woman against marital rape include protection under The Domestic Violence Act, 2005 and Section 376B of IPC which states that a man can be jailed for 7 years if he rapes his wife during judicial separation. But both these laws are not sufficient enough to protect a woman against the monstrosity of her husband. Hence a new law needs to be enacted such that it should be able to exactly identify the marital rapist without faulty judgements. There should be minimum loopholes so that the actual criminal is punished and be held guilty.