India and International Human Rights: An Ambiguous Relationship

Posted 31 October 2019

In the post-world war II stage, at the time when the United Nations Organisation was being formed, India was still under colonial rule. Yet, it had a seat at the table and was one of the founding members of the United Nations. While India has been active in pursuing a policy that took a strong stance against apartheid, colonialism and discrimination and was involved in the preparatory work of the United Nations Declaration on Human Rights (UDHR), India’s current commitment to acceptance of international treaties, especially human rights treaties is quite shallow. This Janus-faced relationship was highlighted during the adoption of the Statute of the International Criminal Court (ICC Statute), as one can rightly guess, India participated actively and extensively in the negotiations, yet refused to sign the treaty. Similarly, on the one hand, India is quite keen to get a seat at the United Nations Security Council, on the other hand, it has an uneasy relationship with the United Nations Human Rights Council.[1]

In this third part of the blog series on Kashmir, I will look at the international human rights obligations that India is subject to, those treaties which it has not signed or ratified and finally examine those international obligations considered jus cogens or arising out of customary international law, to which every country is bound to, regardless of whether it has signed up to a particular international treaty or not.

For non-lawyers, the first step of adoption of an international treaty is the negotiation of the treaty, multilateral, when several countries are involved or bilateral when only two countries agree on a treaty, for example one on a particular border. The second step is signature, when a country signs an international treaty, it is committing itself to abide by an international contract. The process of ratification is a third step, in which the government (executive) puts the treaty to the parliament (legislature) and gets its confirmation. Between signing and ratifying a treaty, it is generally accepted that, no steps shall be taken that actively violate or go against the provisions of the treaty. However, without ratification, another country cannot claim or bring a case against the first country for having violated its treaty obligations.

A look at the UN’s website on human rights treaties points to a meagre participation by a country that is home to 17.71% of the world’s population in the UN Human Rights Framework. While India is party to some of the main human rights treaties[2], it has very clearly avoided accepting any international complaints mechanism that would allow Indians to access international bodies for recourse.

This means that if the national institutions are unable or unwilling to look into violations, the non-adoption by India of the international complaints mechanisms means that affected people do not have any recourse to UN treaty bodies. The situation might have been less dire had there been a regional human rights mechanism, like for example the European Court of Human Rights, which accepts complaints from 47 states in Europe that are members state of the Council of Europe, including countries like UK, Turkey, Russia and Bosnia-Herzegovina.

As mentioned in the second part of this post-series, India has signed but not ratified the Convention against Torture and has not signed the Optional Protocol to the same Convention either. It has followed the same path with respect to the Convention for the Protection of All Persons from Enforced Disappearance, which it signed in 2007 but has not yet ratified.

Let us take a look at how India abides by those obligations it has accepted, i.e. its compliance with those human rights treaties that it has signed and ratified.

As has been pointed out by Priya Pillai, between 2010 and January 2019 there were 26 critical statements (mostly by UN experts, with some by the UN High Commissioner for Human Rights).[3] She points that nine were issued in 2018, which was until then the year that saw the highest number of negative statements on India in the period examined. Already between January and October 2019, there have been already seven negative statements with respect to India, condemning India for non-compliance with human rights obligations. These range from eviction of forest dwelling Adivasis, the situation in Kashmir, enforced disappearances in Uttar Pradesh to the expulsion of the Rohingya refuges and the creation of statelessness by the NRC in Assam. The only positive statement was made with respect to the India’s planned adoption of a National Action Plan for the implementation of corporate respect for human rights.

In the Universal Periodic Review conducted in 2017, which is something akin to a periodical examination by a peer group (other countries), India’s human rights record was criticised, which is not surprising. What is surprising is, however that the High Commissioner for Human Rights not only called upon India to ratify a number of treaties (including the Convention against Torture) but also to submit outstanding reports on compliance with human rights treaties. India has not submitted reports on the Convention on Civil and Political Rights, which was due in 2001 (late by a mere 17 years); on the Convention on the Elimination of Racial Discrimination, due in 2010 and the Convention on Economic, Social and Cultural Rights due in 2011. To sum it up, India’s performance on human rights treaties has been dismal, whether it is abiding by its obligations which it has not been doing or submitting reports on compliance, which it has not done either.

Let us take a while to understand the notion of jus cogens and customary international law. The notion that there can be such egregious acts which are fundamentally at odds with the notion of what is ethically and legally allowed, has given rise to certain concepts that are considered jus cogens. This Latin phrase literally means “compelling law”. These are norms of international law from which no derogation is permitted. While there is no exhaustive list of which norms constitute jus cogens, the prohibition of the use of force between states, the prohibition of slavery, racial discrimination, torture and genocide, as well as peoples’ right to self-determination are considered to be jus cogens.

The prohibition of torture is thus a peremptory norm of international law to which a country is bound, irrespective of whether it has acceded to the Convention Against Torture or not. Therefore, India is bound to this prohibition, irrespective of its non-accession to the Convention against Torture.

The challenge that arises from India’s ambiguous and rather rejective relationship with international human rights treaties, obligations and bodies is that effectively, the government of India remains unaccountable on the international level. Time and again, UN special rapporteurs have called upon India to respect, protect and fulfil basic rights, right to life, liberty, freedom of speech, prohibition of torture and degrading treatment, India has not been responsive. By not acceding to implementation mechanisms, India remains outside the purview of redress for victims of human rights violations.

One should not forget, that this is not about India’s reputation on the international stage, it is about the rights and freedoms of 1.2 billion Indians and the social pact that they entered into and are part of, namely the Constitution of India, which guarantees to all basic fundamental rights. The implementation of human rights norms should not just be guided by international pressure, but by domestic needs. It is about each and every Indian, and the right to be free.

First they came for the Communists

And I did not speak out

Because I was not a Communist

 Then they came for the Socialists

And I did not speak out

Because I was not a Socialist

 Then they came for the trade unionists

And I did not speak out

Because I was not a trade unionist

Then they came for the Jews

And I did not speak out

Because I was not a Jew

Then they came for me

And there was no one left

To speak out for me 

• Martin Niemöller

[1] India should ‘unlock’ freedom curbs in disputed Kashmir, urges UN human rights chief, 29 October 2019, UN News, https://news.un.org/en/story/2019/10/1050141

[2] India is party to the International Covenant on Civil and Political Rights as well as the Covenant on Economic, Social and Cultural Rights. It is also party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities.

[3] Priya Pillai, The view from the outside on India’s human rights record, 18 January 2019, https://www.thehindu.com/opinion/op-ed/the-view-from-the-outside/article26018403.ece