Intro: Is the Indian government justified in their refusal of visas to the USCIRF team?
By Justice Markandey Katju,
Former Judge, Supreme Court
& Aiman Hashmi
Law student, Delhi University
The Indian Foreign Minister S. Jaishankar has denied visas to a delegation of the US Commission on International Religious Freedom (USCIRF) for visiting India to investigate allegations of atrocities on minorities and assess religious freedom in India. A question arises whether this denial is valid under international law. We submit it is not.
The Peace of Westphalia 1648 gave birth to the principle in International Law that each state has exclusive sovereignty over its territory. The notion of a “Nation state” by the 18th century would be molded to refer to a community which had a common descent or language. Eventually, these principles would age into the 20th century rise of ethnic nationalism, most infamously effectuated by the Nazi Regime.
After the Cold War, states began to contemplate a post-Westphalian order whereby states would intervene in circumstances of human rights abuses. On the flip side, for a post-colonial nation such as India’s, however, the term ‘intervention’ often carries reminders of imperialist invasions. ‘Humanitarian interventions’ have also been criticized by some to be trojan horses for justifying or veiling invasions by foreign powers.
USCIRF is a non-governmental advisory body to the US Congress. Mr Jaishankar stated that it “lacks locus standi to pronounce on the state of Indian Citizens”. USCIRF has recommended to the U.S. administration that India be designated as a “country of particular concern”, the first time since the 2002 Gujarat ‘pogrom’.
The USCIRF in April 2020 had stated a concern coming from many quarters that religious freedom has taken a downward turn in India. It referred to the CAA-NRC issue, scrapping of special status of Jammu and Kashmir, and the Delhi riots in February, creating a “culture of impunity for nationwide campaigns of harassment and violence against religious minorities”. According to Mr. Jaishankar, statements upon the fundamental rights of Indian citizens is “misrepresentation” and “unwarranted”.
So is the Indian Government justified in their refusal of visas to the USCIRF teams? It cannot be disputed that many in the Muslim minority feel persecuted. Contrast it with the “culture of impunity” which sees Union ministers garlanding lynchers, communalizing instances of animal violence, etc.
There is also weaponization of media, which is complicit in demonizing minorities – note how the religious congregation of the ‘Tablighi Jamaat’ is covered as Muslims being the carriers of Covid 19.
In our opinion, in today’s world neither can a state government claim total impunity relying on an absolute Westphalian principle of state sovereignty, nor can foreign nations claim the right to invade a country giving the pretext of a humanitarian crisis within that country. A middle ground has to be found in International Law. After all, today’s world has become smaller and globalized. What happens in one country may well have an effect on another country.
We therefore submit that while a foreign country cannot validly invade another country on the ground of a humanitarian crisis but it can certainly investigate into what is going on within that country where there is prima facie proof of oppression of minorities or such other atrocities.
After all, states cannot reserve sovereignty over systematic persecution of its citizens. To allow for independent experts to look into allegations of human rights violations is not something that the international body is a stranger to – The Universal Periodic Review also allows for independent assessment apart from reports submitted by States. To meet an attempt to assess ground realities with vehement denial and disparagement does not bode well for any international standing.Read More