International Law : CA : Nov 1-15 : 2016

NOV 1 : POLITY/ INTERNATIONAL LAW : OPINION : THE HINDU :

Case against a uniform asylum law

NEWS : Baloch leader Brahamdagh Bugti’s request for asylum in India has prompted calls for a uniform and apolitical asylum law. That would be a mistake.

WHY ? Asylum has always been a diverse institution, resistant to homogeneity (uniformity) and friendly to political dissidents.3 bills for asylum were introduced ;but they did not materialise as it had a rigid European view of asylum.

ASYLUM V. REFUGEE :

  • Asylum and refugees are different concepts in International law.[1] An asylee need not be a refugee.

  • Asylum, came before refugee regime, is an ecclesiastical concept that provided safe haven in a place of worship. Aslum will be given only based on willingness of a state to grant it.

  • But Whereas The UN’s Refugee Convention of 1951 links refuge to persecution on racial, religious, national, social, or political grounds. It is for an individual to prove that he is an refugee based on above-mentioned grounds.

  • An individual, proving the targeted persecution would be difficult. That’s why : India did not sign it. So as Africa, which allows own convention which recognised that refugees are people who flee serious public disorder, external aggression, occupation, and foreign domination.

  • Difference between asylum and refugee reflected during Balkan conflicts of the 1990s. A suit was filed in The United Nations High Commissioner for Refugees (UNHCR). Distinction between the two recognised in EU countries.

Politics versus humanitarianism

  1. The duty to protect refugees is a widely accepted, binding norm of international law. But the refugee convention refuses protection to people accused of “serious non-political crimes” such as terrorism. For those people, asylum will grant protection. Example :

  • Latin America granted asylum for coup leaders and guerrillas.

  • Dalai lama is not a refugee to india but “honoured guest” — diplomatese for political asylee

  1. Asylum can be for political reasons whereas refugee is for humanitarian reasons.

  2. Asylum can be granted in extra-territorial manner. It can be granted by diplomatic missions abroad as it has been to Julian Assange by Ecuador’s embassy in London.

Asylum and Extradition :

  • Asylum and extradition are related concepts. Extradition law exempts a country from handing over a criminal if the offence for which she is wanted is of a political character. This is known as the ‘political offence exception.’ It enables political asylum.

  • It is recognised in the Extradition Act, 1962 and earlier laws too — perhaps an indicator of the legislature’s intent to allow people like Mr. Bugti to shelter in India at the government’s discretion.

CONCLUSION : The principle that governments have wide discretionary powers regarding foreigners is as old as the concept of sovereignty. It has been reiterated by the Supreme Court several times. It can be expressed in an asylum law without contradicting the duty to protect refugees. What India needs is a discretionary political asylum regime for people like Mr. Bugti as well as a mandatory refugee regime to ensure humanitarian protection.

NOV4 : THE HINDU : India to host Seventh Session of the Conference of Parties (COP7) Health Minister to inaugurate it on 7th Nov

India is to host the most important global anti-tobacco conference, which will review the implementation of the WHO Framework Convention on Tobacco Control (WHO FCTC) and the Protocol to Eliminate Illicit Trade in Tobacco Products.

The conference will be held in Delhi, 7-12 November 2016. The venue is the India Expo Centre, Knowledge Park, Greater Noida, Uttar Pradesh.

It is the first occasion that a COP meeting is being held in India and signals a strong and generous commitment of the Government of India to increase international co-operation and awareness of the WHO FCTC globally and especially in the WHO South-East Asia Region.

FLASHBACK :

  1. The FCTC entered into force in 2005. It was the first international treaty to be agreed under WHO’s auspices and has successfully helped to co-ordinate and energize the global struggle against tobacco. The Conference of the Parties (COP) is the Convention’s governing body and is comprised of all 180 Parties. It regularly reviews the implementation of the Convention and takes action to promote its effectiveness. The regular sessions of COP are held at two yearly intervals.

The Convention is divided into sections:

 Articles 3-5 establish the objective, guiding principles and general obligations engendered by the treaty;

Article 5, general obligations, requires Parties to establish essential infrastructure for tobacco control, including a national coordinating mechanism, and to develop and implement comprehensive, multisectoral tobacco-control strategies, plans and legislation to prevent and reduce tobacco use, nicotine addiction and exposure to tobacco smoke. This process must be protected from the interests of the tobacco industry. The Article also calls for international cooperation and refers to raising the necessary financial resources for implementation of the Convention.

Articles 6 to 14: demand-side reduction measures;

Articles 15-17: supply-side reduction measures;

Article 18: protection of the environment; It addresses concerns regarding the serious risks posed by tobacco growing to human health and to the environment.

Article 19: liability;

Articles 20-22: cooperation and communication;

Articles 23-26: institutional arrangements and financial resources;

Article 27: settlement of disputes;

Articles 28-29: development of the convention; and

Articles 30-38: “final provisions”, covering statutory matters such as means of acceding to the

Convention, entry into force, and so on.

  1. The first Protocol to the WHO FCTC, the Protocol to Eliminate Illicit Trade in Tobacco Products, was adopted at COP5, held in November 2012 in Seoul, Republic of Korea, following several rounds of negotiations by the Parties. The Protocol builds on the WHO FCTC (Article 15) in the fight against illicit trade, and is a new international treaty in its own right. currently it has 13 Parties. It takes effect 90 days after 40 Parties have ratified.

NOV: 05 : Paris Climate Agreement Comes into Force Today : Environment Ministry Building to Display ‘Smiley’ With Lights, with Slogan – “We Did It”

  1. The “Paris Climate Agreement”, comes into force on 4th November 2016. India and other countries will display a ‘Smiley’ with lights, with the slogan "We Did It" on important buildings. India ratified the Paris Agreement on 2nd October 2016, the birth anniversary of Mahatma Gandhi and the Agreement has the support of majority of the countries. This is a global effort.

  2. The Paris Agreement builds upon the Convention and – for the first time – brings all nations into a common cause to undertake ambitious efforts to combat climate change and adapt to its effects, with enhanced support to assist developing countries to do so. As such, it charts a new course in the global climate effort.

  3. The Paris Agreement’s central aim is to strengthen the global response to the threat of climate change by keeping a global temperature rise this century well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius.

  4. The Paris Agreement requires all Parties to put forward their best efforts through “nationally determined contributions” (NDCs) and to strengthen these efforts in the years ahead. This includes requirements that all Parties report regularly on their emissions and on their implementation efforts.

NOV:09 32 Indian peacekeepers injured in Congo blast

Thirty-two Indian soldiers serving under the United Nations peace keeping mission in Congo received minor injuries on Tuesday in a road side blast, which claimed the life of an eight-year-old girl.

MISSION IN CONGO : The United Nations Organisation Stabilisation Mission in the Democratic Republic of the Congo was established in November 1999 to plan for the observation of the ceasefire and disengagement of forces and to maintain liaison with all parties. The mandate was later expanded to the supervision of the implementation of the ceasefire agreement.

INDIAN FORCES IN U.N. : According to U.N. statistics, as on August 31, 2016, there were 22,016 uniformed personnel deployed under the Congo mission, and India had contributed 3,434 personnel including troops, military experts and police.

India is the second largest troop contributor to such missions as of August end, with 7,471 personnel deployed. This is next only to Ethiopia, which has contributed 8,326 personnel.

NOV : 09 : India makes fresh push to gain NSG entry

  • India’s bid for membership of the Nuclear Suppliers Group will be centre-stage again this week as the group meets for the Consultative Group technical meeting on September 9-10, followed by the Plenary session in Vienna on Friday.

  • The government hopes its application will be considered again, five months after the last unsuccessful round.

NOV 10 : India will suffer losses if it joins Japan on SCS: Global Times

“India should beware of the possibility that by becoming embroiled in the disputes, it might end up being a pawn of the U.S. and suffer great losses, especially in terms of business and trade, from China,

Not to India’s benefit

“India won’t benefit much by balancing China through Japan. It will only lead to more mistrust between New Delhi and Beijing,” it said.

“India’s proposal to make new waves in the SCS first came to Singapore last month, but Singapore, a master of the rebalancing strategy, snubbed it. The rejection shows India lacks legitimacy and leadership in making new waves in the SCS,” the article said. It also pointed out that with the recent visit to China of Rodrigo Duterte, the new President of Philippines, the country that filed arbitration case against Beijing, the SCS dispute “passed pinnacle of tensions.”

Even Manila has mended fences’

“India should realise that the SCS disputes have passed the pinnacle of tensions after the announcement of the arbitration result, and some involved parties have begun to reflect on their old way of addressing the disputes creating conflicts without seeking productive bilateral negotiations. The Philippines, once a major aggressive claimant against China, has restored its relationship with China,” it said.

The article which comes in the backdrop of recent meeting at Hyderabad between National Security Advisor Ajit Doval and his Chinese counterpart Yang Jiechi said India wants to scale up its stand on the SCS in retaliation to Beijing blocking India’s bid to the Nuclear Suppliers Group (NSG).

India not yet qualified for NSG

“India knows that it is not yet qualified for membership in the NSG, according to the organisation’s rules. China’s decision was simply a fulfillment of its international duties. It is preposterous for Indian media and government to scapegoat China as a troublemaker, and seek revenge by making more troubles,” it said.

“As a non-claimant to the SCS and an outsider that has no traditional influence on the region, India has been paying keen attention to any activity, because the country has adopted a ‘Look East’ foreign policy since Modi took office,” the article said.

“India, however, seems to have overestimated its leverage in the region. Although China’s major rivals in the dispute, such as the U.S. and Japan, have been trying to draw India into their camp, the country will be likely regarded as having a token role,”

EDITORIAL2 OF THE HINDU : Making climate rules at Marrakech + EDITORIAL OF INDIAN EXPRESS : Marrakesh challenge

Conference of the Parties 22 (CoP 22) : The United Nations conference on climate change now under way in Marrakech, Morocco.

For what? on enhanced finance and technology transfer, which is vital to advance the Paris Agreement that entered into force on November 4.

ISSUE: Climate financing has been a longstanding bone of contention between the developing and developed countries. In the run-up to the Paris summit, countries announced measures that will help them reduce GHG emissions.

  • But there is also a consensus that the developing countries lack financial wherewithal, skills and institutions to attain these targets.

  • The signatories to the Paris pact include small island states that are highly vulnerable to climate change. These countries would be justified in arguing that they have done their bit in ratifying the Paris pact. The ball is now in the court of the developed nations (to pay for the projects)

India’s Stand: The basic principle of equity and common but differentiated responsibilities laid down by the UN Framework Convention on Climate Change are upheld.

  • Mitigating greenhouse gas emissions below 2° Celsius since pre-industrial levels. considered impossible even if all countries take their pledges seriously.

  • Paris Agreement does not have a carbon budget system that gives weightage to the emerging economies taking their historical handicap into account.

Therefore. We need more money. Ask it from developed countries.it is imperative therefore that the national position raises pressure on rich countries for technological and funding assistance under the Paris Agreement.

  • To demand suitably high financial flows to both mitigate emissions and prepare communities to adapt to climate change.

  • Such a mandate should be seen as an opportunity, since CoP 22 will discuss ways and means for countries to integrate their national commitments submitted for the Paris deal into actual policies and investment plans.

  • In India’s case, new developments in sectors such as construction, transport, energy production, waste and water management, as well as agriculture, can benefit from fresh funding and technology.

Adopting green technologies – TWIN Advantages.

  • in power generation, = a lock-in effect lasting decades,

  • in transport = immediate impacts such as reduced air pollution.

RESULT: The local environment is cleaned up, improving the quality of life, and carbon emissions are cut.

  • India should update its preparedness to meet the new regime of transparency that is to be launched under the climate pact.

  • The preparatory decisions to write the rules and modalities for such a framework, and assist developing countries with capability building will be taken at Marrakech.

  • There is some apprehension that the U.S. could exit the climate consensus since the President-elect, Donald Trump, has vowed to cancel the Paris Agreement. Yet, business and industry today see a strong case to take a new path, as energy costs favour renewable sources over fossil fuels.

  • States and cities are also charting their own course to curb emissions. These are encouraging trends.

TIMELINE:

2015 - Intensive negotiations took place under the Ad Hoc Group on the Durban Platform for Enhanced Action (ADP) throughout 2012-2015 and culminated in the adoption of the Paris Agreement by the COP on 12 December 2015. More on the Paris Agreement.

2014 - At COP 20 in Lima in 2014, Parties adopted the ‘Lima Call for Action’, which elaborated key elements of the forthcoming agreement in Paris. More on the Lima Call for Action.

2013 - Key decisions adopted at COP 19/CMP 9 include decisions on further advancing the Durban Platform, the Green Climate Fund and Long-Term Finance, the Warsaw Framework for REDD Plus and the Warsaw International Mechanism for Loss and Damage. Under the Durban Platform, Parties agreed to submit “intended nationally determined contributions”, known as INDCs, well before the Paris conference. More on the Warsaw Outcomes.

2012 - The Doha Amendment to the Kyoto Protocol is adopted by the CMP at CMP 8. More on the Doha Amendment. Several decisions taken opening a gateway to greater ambition and action on all levels. More on the Doha Climate Gateway.

2011 — The Durban Platform for Enhanced Action drafted and accepted by the COP, at COP17. More on the Durban outcomes.

2010 — Cancun Agreements drafted and largely accepted by the COP, at COP 16. More on the Cancun Agreements.

2009 — Copenhagen Accord drafted at COP 15 in Copenhagen. This was taken note of by the COP. Countries later submitted emissions reductions pledges or mitigation action pledges, all non-binding.

2007 — IPCC's Fourth Assessment Report released. Climate science entered into popular consciousness. At COP 13, Parties agreed on the Bali Road Map, which charted the way towards a post-2012 outcome in two work streams: the AWG-KP, and another under the Convention, known as the Ad-Hoc Working Group on Long-Term Cooperative Action Under the Convention. More about the Bali Road Map.

2005 — Entry into force of the Kyoto Protocol. The first Meeting of the Parties to the Kyoto Protocol (MOP 1) takes place in Montreal. In accordance with Kyoto Protocol requirements, Parties launched negotiations on the next phase of the KP under the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP). What was to become the Nairobi Work Programme on Adaptation (it would receive its name in 2006, one year later) is accepted and agreed on. More about the Nairobi Work Programme.

2001 — Release of IPCC's Third Assessment Report. Bonn Agreements adopted, based on the Buenos Aires Plan of Action of 1998. Marrakesh Accords adopted at COP 7, detailing rules for implementation of Kyoto Protocol, setting up new funding and planning instruments for adaptation, and establishing a technology transfer framework.

1997 — Kyoto Protocol formally adopted in December at COP 3. More about the Kyoto Protocol.

1996 — The UNFCCC Secretariat is set up to support action under the Convention. More on the Secretariat.

1995 — The first Conference of the Parties (COP 1) takes place in Berlin.

1994 — UNFCCC enters into force. An introduction to the United Nations Framework Convention on Climate Change.

1992 — The INC adopts UNFCCC text. At the Earth Summit in Rio, the UNFCCC is opened for signature along with its sister Rio Conventions, UNCBD and UNCCD. More about the two other Rio Conventions: UNCBD and UNCCD.

1991 — First meeting of the Intergovernmental Negotiating Committee (INC) takes place.

1990 — IPCC's first assessment report released. IPCC and second World Climate Conference call for a global treaty on climate change. United Nations General Assembly negotiations on a framework convention begin.

1988 — The Intergovernmental Panel on Climate Change is set up. More about the science of climate change.

1979 — The first World Climate Conference (WCC) takes place.

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