Under international law, India was not justified in denying visas to the USCIRF team which wanted to probe allegations of atrocities on minorities
Minister of External Affairs S Jaishankar has denied visas to a delegation of the US Commission on International Religious Freedom (UNCIRF). The team wanted to visit India to investigate allegations of atrocities on minorities and assess religious freedom in the country. This denial is not valid under international law.
The Peace of Westphalia, 1648, gave birth to the concept of Westphalian Sovereignty: It is the principle in international law that each State has exclusive sovereignty over its territory, protected against foreign intervention into matters which lie within its exclusive domestic jurisdiction. This principle was also interconnected with the notion of a “nation State”, which by the 18th century would be moulded 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.
It is in this context that criticism of Westphalian Sovereignty emerged when international legal scholars saw the extent of horrors unleashed by the Nazi regime upon its Jewish citizens under the cover of sovereignty over its subjects. The ignominious premise of such a regime was that the State had absolute authority to cleanse for itself, any identity which did not assimilate within the idea of the dominant majority.
After the end of the Cold War, States began to contemplate a post-Westphalian order whereby they would intervene in human rights abuses by nations. Humanitarian intervention gained ground as a prime exception to principles of absolute sovereignty. On the flip-side, for a post-colonial nation such as ours, the term “intervention” often carries reminders of imperialist invasions. Humanitarian interventions have also been criticised by some to be Trojan horses for justifying or veiling invasions by foreign powers. This debate has been brought to India with the Government’s denial of visas to the USCIRF team, a non-governmental advisory body to the US Congress, after its denouncement of the state of religious freedom.
Jaishankar stated that a foreign entity “lacks locus standi to pronounce on the state of Indian citizens.” His ire is grounded in the USCIRF’s recommendation to the US administration in April that India be designated as a “country of particular concern”, the first time since the 2002 Gujarat pogrom. Pointing out that religious freedom had taken a downward turn in India, the USCIRF referred to the Citizenship Amendment Act (CAA) and National Register of Citizens (NRC) issue, scrapping of the 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 Jaishankar, statements on the fundamental rights of Indian citizens are “misrepresentation” and “unwarranted.”
However, it cannot be disputed that persecution is being collectively experienced by the minorities in this country. The names of Akhlaq, Pehlu Khan and Tabrez Ansari evoke bitter remembrances of hundreds of victims of mob-lynchings still awaiting justice. NRC-CAA protesters, who voiced concerns against fundamentally-discriminatory laws, continue to be arrested on trumped-up charges with a singular focus on activists such as Safoora Zargar, Kafeel Khan and Sharjeel Imam.
These are sharply contrasted with the “culture of impunity” which sees Union Ministers garlanding lynchers, communalising instances of violence against animals and sheltering individuals such as Kapil Mishra and Minister Anurag Thakur, who incited their supporters with hate speeches like “desh ke gaddaron ko, goli maro saalon ko (shoot the traitors)” and yet their names do not even figure in the chargesheet of the Delhi riots case. Investigations into any individual who pledges allegiance to the Right-wing seem woefully compromised. A textbook weaponisation of the media, which is complicit in demonising minorities, is also seen when the religious congregation of the Tablighi Jamaat is covered as Muslims being the carriers of Covid-19.
In today’s world, neither can a State claim total impunity relying on an absolute Westphalian principle of sovereignty, nor can foreign nations claim the right to invade a country giving the pretext of a humanitarian crisis. A middle ground has to be found in international law, that while foreign countries cannot intervene in another nation to the extent of invasion, at the same time a country cannot claim absolute reliance on the Westphalian principle for denying any kind of intervention by foreign countries altogether. We live in a global village today and what happens in one country invariably affects another.
Therefore, the correct international law principle is that a foreign country can certainly track the happenings within a country where there is prima facie proof of oppression of minorities or other such atrocities. In this uneasy slope towards violent and institutionalised oppression of the minorities, where no organ of the State seems to be upholding accountability, the idea of right to know takes root. It is the middle ground recourse between Westphalian sovereignty and humanitarian intervention. After all, States cannot reserve sovereignty over systematic persecution of citizens.
Vehement denial and disparagement of questions does not bode well for our international standing. It is a minimum requirement to ensure that the detention centres which are being built across the country are not another version of the “final solution” in this atmosphere of intolerance. Jaishankar was not justified under international law in denying visas to the USCIRF delegation which wanted to assess the allegations of atrocities on minorities in the country.
(Writer: Markandey katju; Courtesy: The Pioneer)