Law and Justice for the Indigenous

The indigenous people of the world have been subjected to longstanding abuses of basic human rights with little opportunity for legal redressal till date. The very first challenge that comes up is ‘defining’ the indigenous populace since no international organisation or legal instrument has a definition that is set in stone. A more accurate and acceptable way is identifying who the indigenous are; keeping in mind the following criteria which are universally applicable: tracing of ancestry prior to Western colonialism or any other form of invasion, perspicuously different social, cultural, political and economic system, distinct language and belief systems, a strong tie to the natural environment of their inhabitance, a collective consciousness of shared identity of being a minority and a desire for the continuance of such distinction, thereby opposing  assimilation to the mainstream society. Though the decolonisation movement after the Second World War led to the apparent expulsion of alien rule, the indigenous people were not the recipients of rights and protection that entailed independence. Some of the key issues that affect them even today are inadequate representation in political, economic and legal institutions of the nation, displacement and alienation from their natural surrounding for the sake of projects of development initiated by the government, leading to a loss of cultural identity and the right to self-determination. The sentiment of deprivation and the inadequate national action has motivated them to seek a place in modern international law. The adoption of the 2007 UN Declaration on the Rights of the Indigenous Peoples is the landmark advancement when it comes to addressing their rights and issues. The International Court of Justice (ICJ) has been seen to espouse the right to self-determination as a universal principle, to which even the indigenous are entitled. In the Western Sahara case, the ICJ in 1975 held that the indigenous population, the Sahrawi, is entitled to self-determination and that Morocco’s claim to external sovereignty stands baseless. Despite the court’s advisory opinion, the Sultan of Morocco claimed that his supporters of thousands would march to Western Sahara and occupy its territory. Fearing this outcome, the Spanish who had colonised Western Sahara since 1884 decided to leave the territory to the Moroccans and Mauritians. The Mauritians recognized the sovereignty of the Sahrawi after four years of war in 1979. Morocco till date colonises Western Sahara and sees it as an integral part of its national territory; denying the people their right to self-determination.  However, in the conflict over the Aouzou Strip between Chad and Libya, a dissenting voice raised the issue that the court should have given more weight age to the voice of the indigenous people inhabiting the strip, and not the treaty signed by France and Libya in 1955. The Inter-American Court of Human Rights in its milestone judgment in The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001 had adjudicated that the people of the Community are entitled to judicial protection in the face of the violation of their right to property by the State. The State was obliged to carry out the delimitation, demarcation, and titling of the corresponding lands of the members of the Mayagna (Sumo) Awas Tingni Community and have their right to the land restored.  The decision illustrates the need for the indigenous to reach out to the international legal community and have their grievances redressed which will be tested time and again; especially in light of the controversial Belo Monte Dam case. Despite strong opposition to the building of the Belo Monte dam, the Brazilian government had gone ahead with its construction since 2011.  The IACHR in 2011 had authorized precautionary measures inhibiting violation of the rights of the indigenous hitherto inhabiting in the vicinity of the dam, which the State failed to comply with. Earlier in January 2016, the IACHR had agreed to reopen the case on these grounds. On January 20th,  2016 the Brazilian federal court had ruled in favour of the displaced indigenous masses by suspending the dam’s license and levying a fine of 900,000 reais. Though it is a highly welcome move, many opine that it is not the first time the government has come across legal hurdles. It plans to have the damn operational by 2019. The recognition, redressal and enforcement of rights of the indigenous is thus a long drawn battle that requires the ardent support of international law. Written By: Dikshita Baruah, a student of GLC, Mumbai as part of Internship Program
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UN Peacekeeping Force: Protectors or Perpetrators?

Under International Law, the UN Charter has laid out the foundation for the responsibility of the UN System to maintain international peace and security. Peacekeeping is one of the most effective tools available to the UN which provides the host countries with assistance to make the transition from the period of conflict to that of peace and is guided by three crucial principles i.e., the consent of the parties, impartiality and non-use of force except in the cases of self-defense and defence of the mandate. There are multiple significant benefits obtained by the peacekeeping operations conducted by the United Nations.Firstly, it creates a secure and stable environment and simultaneously provides the States with an opportunity to strengthen the State’s ability to provide security with full consideration given to the aspect of the rule of law appropriate platform for the establishment of authentic institutions of governance and also attempts to lend support to the political and human rights. It provides a process which exists within the State and provides the basic structure to ensure that international organisations which are working within it are able to pursue activities to further their cause at the country-level in a systematic and coordinated manner. In 2014, there were allegations about instances where French soldiers serving as peacekeepers in the Central African Republic had sexually abused a number of young children in exchange for food or money. A UN Report has stated that there are 69 allegations of sexual exploitation and abuse made against UN peacekeeping soldiers in the year of 2015 which is a steep increase from the 52 claims in 2014.The main issue here is that ultimately the authority to investigate and prosecute in these cases is within the soldier’s home country and the United Nations does not have the legal authority to punish a country’s soldier even if they are serving duty under it. Even though the French had announced that efforts would be taken to launch an official investigation there have been several instances where the respective countries do not respond to the questions which the United Nations headquarters may have regarding the procedure of investigation of their soldiers abroad. Another significant aspect is that there is a wide variation in the manner in which each country would punish its troops. Even the United Nations has played a role in the continuance of this atrocious practice because many a times they do not raise their voice and are averse to the idea of reporting incidents that would embarrass nations that contribute soldiers to ensuring the success of these peacekeeping missions as they want to refrain from commenting on a public platform regarding the procedure which these countries follow to deal with sexual abuse allegations against the suspects and the UN Security Council has adopted a resolution where the peacekeeping units whose soldiers face allegations of sexual abuse can be sent back to their place of origin or citizenship. This was a landmark event since it was the first time that the Council had approved measures to address the steady rise in the allegations of sexual abuse committed by the peacekeepers whose main aim is to serve as protectors and not perpetrators. This step also had its fair share of opposition. Egypt had expressed its reservation on supporting this resolution. The UN Ambassador of Egypt felt that the issue of such nature must be addressed by the General Assembly since it constitutes of representatives from all the nations but whose resolutions do not have a legally binding effect, unlike the 15-member council. It was also argued that this issue should not create negative repercussions where the countries contributing these troops are undermined regarding their sacrifices and reputation. Russia’s deputy UN ambassador also expressed his views where he stated that peacekeeping is not a part of the Security Council’s duty to maintain international peace and security and that the countries which contribute these troops must play a significant role in reducing and eliminating these incidents. Here even though the opposition does not a valid point, the resolution still seems like the best way to curb this growing problem as extreme steps like this might be the only deterrent force in these instances. Written By: Vaishnavi Menon, A student of NUALS Kochi as part of Internship Program REFERENCES
  • http://www.bbc.com/news/world-35790697
  • http://english.ahram.org.eg/NewsContent/1/64/190794/Egypt/Politics-/Cairo-defends-abstention-from-UN-resolution-on-pea.aspx
  • http://www.hawaiinewsnow.com/story/31437942/us-facing-opposition-on-tackling-sexual-abuse-by-un-troops
  • http://www.un.org/en/peacekeeping/operations/peacekeeping.shtml
  • http://www.un.org/apps/news/story.asp?NewsID=53368
  • http://www.washingtonpost.com/sf/world/2016/02/27/peacekeepers/
 
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Religion≠Repulsion

Phobia, according to the Merriam-Webster dictionary, is an exaggerated, usually inexplicable and illogical fear of a particular object, class of objects, or situation. It exists due to reasons of conditioning, societal norms or experience or just mere unawareness. Islamophobia is one such phenomenon existing in the world today. It is known to be fear or hostility toward Muslims practicing Islam that is mostly exaggerated and perpetuated further by negative stereotypes in the media, societal opinion etc. This results in bias leading to discrimination and segregation of the Muslim population from common society. Islamophobia had always been around but it was only recently that it has been highlighted and debated over, more with the current refugee crisis, persisting as Xenophobia in many places. The crisis saw various nations of the European Union remain silent and discreet on granting Muslim Asylum seekers a clear-cut refugee status in their countries. The November 2015 Paris attacks, led to an even widespread fear and prejudice against the Muslim community as organizations promoting the Muslim state came out and took responsibility for the attacks. Many French politicians and leaders adopted a closed door, anti-immigrant stance to condemn the attacks and protect country’s national integrity, peace and harmony. Islamophobia is yet to be given a definite form; it exists in our everyday lives. Taking India for example, ours is a secular nation which finds unity in diversity and yet we have segregations in our cities and villages based on religion. Media plays a huge role in encouraging this bias further, movies and popular TV series surrounding the theme of terrorism always show Muslim characters or names. Moreover, the growing Islamic State and its troops have negatively influenced a lot of people into believing all the wrong notions of Islam. This was the same religion that spoke about Sufism and seeing the beauty in the world through music and dance, the religion that treated all its disciples as equals and encouraged brotherhood amongst people. Islam today has taken new perspectives in people’s minds, it is associated with barbaric practices and restrictive laws. Violence and Islam seem like synonyms as aggression takes the form of Jihad, for many. What we know of Islam today is not even a ten percent of what Prophet Mohammed had preached; it has been misinterpreted over the years. This is the world with a major statistics of a growing population in a globalized society, all connected to one another. At such times, it is important to understand how ostracizing or heavy bias against a particular group can lead to a vast number of these youth being targeted. Xenophobia is another dangerous phenomenon to consider especially with the ongoing migrant crisis, with millions seeking asylums in European and western countries having nowhere else to escape. Refugees from Islamic countries face the already harsh conditions of existing as refugees and have to moreover try and assimilate with citizens having a bias against them. This widespread notion, however, has not gone unnoticed with various countries coming forward and taking a stance against Islamophobia and to help their citizens against this mentality. The European Commission organizes seminars addressing the public against Racism and Intolerance, or encourages Youth Campaigns against Racism, Xenophobia, and Anti-Semitism. The European Human Rights Court has given various statements on this subject highlighting all our fundamental rights to freedom of thought and expression and having our own religious beliefs, further emphasizing the prohibition of discrimination towards particular religions and religious communities. The Court has frequently stressed upon the State’s role as the neutral and impartial supervisor of people to exercise their rights to various religions, faiths and beliefs and that this role is beneficial in promoting public order and religious harmony in a democratic society. Human rights are universal and everybody in this society has the right to choose what they believe and how they practice what they believe. The noblest thing a human being can do is be kind to one another, sure rights can be violated but they cannot be lost. It is important to create dialogues amongst different societies in glorifying their differences and looking for harmonious solutions to existing together without prejudice. Written By: Shambhavi Padhye, A student of SLS Pune as part of the Internship Program References:
  1. http://www.merriam-webster.com/dictionary/phobia
  2. Ingrid Ramberg, Islamophobia and its consequences on Young People, European Youth Centre Budapest https://www.coe.int/t/dg4/youth/Source/Resources/Publications/Islamophobia_consequences_young_people_en.pdf
  3. Islamophobia: Understanding Anti-Muslim Sentiment in the West http://www.gallup.com/poll/157082/islamophobia-understanding-anti-muslim-sentiment-west.aspx
 
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