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India’s role in the Human Rights Council: Is there a constitutional vision in its foreign policy?

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Indian Journal of International Law

Abstract

This article seeks to understand the nature of India’s interventions in the Human Rights Council spanning the areas of civil and political rights, country specific resolutions, socio-economic rights and emerging issues such as sexual orientation and gender identity. India’s voting at the Human Rights Council indicates a preference for either abstaining or diluting human rights concerns when it comes to civil and political rights. With respect to country specific resolutions India has been either hostile or indifferent, except in the case of Sri Lanka and Palestine. With respect to socio-economic rights, India has been more proactive especially with respect to resolutions on access to medicine and human rights and trans-national corporations. India’s overall record at the Human Rights Council indicates a country which does not seem to think that Constitutional values which govern the country internally need to be promoted internationally. Very often there is a marked divergence between the self image of India as the world’s largest democracy and the way India votes in the Human Rights Council.

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Notes

  1. The Council’s Membership is based on equitable geographical distribution. Seats are distributed as follows: African States: 13 seats, Asia-Pacific States: 13 seats, Latin American and Caribbean States: 8 seats, Western European and other States: 7 seats, Eastern European States: 6 seats.

  2. NAM as a grouping has survived the Cold War and continues to function at the international level.

  3. Rahul Sagar, Before Midnight: Views on International Relations: 1857–1947, in, David Malone, C Raja Mohan and Srinath Raghavan (eds), The Oxford Handbook of Indian Foreign Policy (OUP, Oxford, 2015) 77.

  4. PB Mehta, Reluctant India, 22(4) J Democracy (October 2011). 106.

  5. Ibid.

  6. General Assembly Resolution 60/251(3 April 2006) [5(i)].

  7. The votes establishing or continuing the following mandates were by consensus. The Working group on Arbitrary Detention, Human Rights Council Resolution 33/30 (30 September 2016);Working Group on Enforced and involuntary disappearances, Human Rights Council Resolution 27/1 (25 September 2014); Special Rapporteur on Extra Judicial or Summary Executions, Human Rights Council Resolution 26/12 (26 June 2014); Special Rapporteur on rights of peaceful assembly and association, Human Rights Council Resolution 32/32 (1 July 2016); Special Rapporteur on independence of judges and lawyers, Human Rights Council Resolution 26/7 (26 June 2014); Special Rapporteur on minority rights, Human Rights Council Resolution 25/5 (27 March 2014); Special Rapporteur on right to privacy, Human Rights Council Resolution 28/16 (26 March 2015) and Special Rapporteur on the freedom of opinion and expression, Human Rights Council Resolution 25/2(27 March 2014).

  8. Documentation on file with Forum Asia and International Service for Human Rights.

  9. Douglas Rutzen, Aid Barriers and the Rise of Philanthropic Protectionism, 17(1) Intl J Not-for-Profit L(March 2015) 1 <http://www.icnl.org/research/journal/vol17ss1/v17n1%20Feb%202015%20revised.pdf>.

  10. ibid.

  11. ibid.

  12. ibid.

  13. <https://www.right-docs.org/doc/a-hrc-res-24-21/>.

  14. ibid.

  15. Ibid.

  16. Ibid.

  17. The Indian statement was delivered on behalf of the Like Minded Group which consisted of Algeria, Bahrain, Bangladesh, Belarus, China, Cuba, Egypt, India, Indonesia, Malaysia, Pakistan, Russia, Saudi Arabia, Singapore, South Africa, Sri Lanka, Sudan, Uganda, UAE, Vietnam and Zimbabwe.

    <https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/India_on%20behalf%20of%20LMG_PD_21.pdf>.

  18. ECOSOC Resolution 1996/31. Para 57(a) of the resolution says:

    57. The consultative status of non-governmental organizations with the Economic and Social Council and the listing of those on the Roster shall be suspended up to three years or withdrawn in the following cases:

    (a) If an organization, either directly or through its affiliates or representatives acting on its behalf, clearly abuses its status by engaging in a pattern of acts contrary to the purposes and principles of the Charter of the United Nations including unsubstantiated or politically motivated acts against Member States of the United Nations incompatible with those purposes and principles;

  19. <https://www.right-docs.org/?q=27%2F31>.

  20. <https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/27thSession/Resolutions/Forms/ResolutionDS/docsethomepage.aspx?ID=61&FolderCTID=0x0120D520005A4381ABFFD48642897E02288D058A2200E9D8CC3828997448BF3FC17667E3B658&List=df6415bd-0726-4b65-835e-d7e39a32dfee&RootFolder=%2Fsites%2Fhrc%2FHRCSessions%2FRegularSessions%2F27thSession%2FResolutions%2FCivil%20society%20space.>

  21. Ibid.

  22. ibid.

  23. See Arvind Narrain and Saumya Uma, Breathing Life into the Constitution (Alternative Law Forum, Bangalore, 2017) 191–198.

  24. ibid.

  25. <https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/31stSession/OralStatements/SR_Defenders_mtg_13.pdf>.

  26. <https://www.right-docs.org/doc/a-hrc-res-25-18/>.

  27. <https://www.right-docs.org/?q=31%2F32>.

  28. The other countries which voted along with India were Bangladesh, Bolivia, Burundi, China, Congo, Cuba, Ethiopia, Nigeria, Russian Federation, Saudi Arabia, United Arab Emirates, Venezuela and Vietnam.

  29. Russia, China, Burundi, Cuba, Nigeria and Venezuela voted against the resolution with Qatar, Saudi Arabia, United Arab Emirates and Vietnam abstaining on the resolution.

  30. See Human Rights Council Resolution 11/10 (18 June 2009) on Sudan; Human Rights Council Resolution33/24 ( 30 September 2016) on Burundi.

  31. See Human Rights Council Resolution 31/19 (23 March 2016) on Iran; Human Rights Council Resolution 29/17 (2 July 2015) on Belarus.

  32. See Human Rights Council Resolutions 9/17 (September 2008), 7/16 (27 March 2008) and 31/20 (23 March 2016) on Sudan when India voted for the consensus resolution. See also Resolution 20/17 (6 July 2012) on Mali and Resolution S-5/1 (2 October 2007) on Myanmar in which India went with the consensus resolution.

  33. <https://www.right-docs.org/?q=syria>.

  34. Resolution S-17/1 (22 August 2011).

  35. India exhibited a similar strategy of being non-committal when it came to voting on Human Rights Council Resolutions S-17/1 (22 August 2011); S-18/1 (2 December 2011); S-19/1(1 March 2012); 27/16 (25 September 2014); 31/17 (23 March 2016); 28/20 (27 March 2015).

  36. University Teachers for Human Rights ( Jaffna), Let Them Speak: Truth about Sri Lanka’s Victims of War <http://www.uthr.org/SpecialReports/Special%20rep34/Uthr-sp.rp34.htm> (5 March 2018); University Teachers for Human Rights ( Jaffna), A Marred Victory and a Defeat Pregnant with Foreboding <http://www.uthr.org/SpecialReports/spreport32.htm#_Toc232409721>. (5 March 2018)

  37. Human Rights Watch, Sri Lanka: Human Rights Council Fails Victims (27 May 2009) <http://www.hrw.org/news/2009/05/27/sri-lanka-un-rights-council-fails-victims>. (5 March 2018)

  38. The Panel of Experts was appointed by the Secretary General to ‘advise the Secretary-General regarding the modalities, applicable international standards and comparative experience relevant to an accountability process, having regard to the nature and scope of alleged violations of international humanitarian and human rights law during the final stages of the armed conflict.’ <http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf> (5 March 2018)

  39. ibid.

  40. <https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/Resolutions/Forms/ResolutionDS/docsethomepage.aspx?ID=135&FolderCTID=0x0120D520005A4381ABFFD48642897E02288D058A22002CAE7647032C234DAC4F5AA21E14406F&List=18f8d1d8-d0b9-41fc-8486-cd05d6c0bca3&RootFolder=%2Fsites%2Fhrc%2FHRCSessions%2FRegularSessions%2F25thSession%2FResolutions%2FPromoting%20reconciliation%2C%20accountability%20and%20human%20rights%20in%20Sri%20Lanka.>

  41. ibid.

  42. <https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/Resolutions/Promoting%20reconciliation,%20accountability%20and%20human%20rights%20in%20Sri%20Lanka/Explanation%20of%20vote%20-%20India.pdf>.

  43. <https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/Resolutions/Promoting%20reconciliation,%20accountability%20and%20human%20rights%20in%20Sri%20Lanka/Explanation%20of%20vote%20-%20India.pdf>.

  44. <http://www.firstpost.com/world/understanding-why-india-abstained-from-voting-against-sri-lanka-in-unhrc-1453803.html ; http://www.ndtv.com/world-news/india-votes-against-sri-lanka-un-human-rights-council-resolution-adopted-472872>.

  45. <http://www.business-standard.com/article/international/un-vote-on-sri-lanka-adopted-india-abstains-114032701248_1.html>.

  46. See the latest Human Rights Council Resolutions 28/25 (27 March 2015); 31/33 (24 March 2016).

  47. The latest Human Rights Council Resolutions are 31/36 (24 March 2016); 28/26 (27 March 2015); 25/28 (28 March 2014); 22/26(22 March 2013).

  48. See Human Rights Council Resolution 28/27 (27 March 2015).

  49. See Human Rights Council Resolution S-21/1 (23 July 2014).

  50. Human Rights Watch, Occupation, Inc (2016) 15 <https://www.hrw.org/report/2016/01/19/occupation-inc/how-settlement-businesses-contribute-israels-violations-palestinian>.

  51. ibid.

  52. <https://www.right-docs.org/doc/a-hrc-res-29-25/>.

  53. <https://www.right-docs.org/doc/a-hrc-res-31-35/>.

  54. <https://thewire.in/26075/india-votes-against-israel-on-key-settlements-resolution-but-abstains-again-on-war-crimes/>.

  55. ibid.

  56. Human Rights Council Resolution 17/17 (17 June 2011).

  57. Human Rights Council Resolution 28/31 (27 March 2015).

  58. <http://www.jpost.com/Israel-News/Politics-And-Diplomacy/As-PA-expresses-shock-at-Indias-UN-vote-Israel-voices-appreciation-for-abstention-408287>.

  59. ibid.

  60. <https://bdsmovement.net/>.

  61. Human Rights Council Resolutions 12/24 (2 October 2009); 15/22 (30 September 2010) and 17/14 (17 June 2011).

  62. Human Rights Council Resolutions 17/4 (17 June 2011) and 26/22 (27 June2014).

  63. Human Rights Council Resolution 33/14 (29 September 2016).

  64. Human Rights Council Resolution 25/17 (28 March 2014).

  65. Human Rights Council Resolution 26/20 (27 June 2014).

  66. Human Rights Council Resolution 31/15 (23 March 2016).

  67. Human Rights Council Resolution 25/16 (27 March 2014).

  68. Human Rights Council Resolution 33/14 (29 September 2016).

  69. Human Rights Council Resolution 33/3 (29 September 2016).

  70. Human Rights Council Resolution 26/6 (26 June 2014).

  71. A/61/338.

  72. ibid.

  73. See Samuel Moyn, A Powerless Companion: Human Rights in an Age of Neo-liberalism. 77 L & Contemp Probs (2014) 147. Moyn is less sanguine that global corporations will function within the rubric of human rights law.

  74. <https://www.theguardian.com/business/2016/sep/12/global-justice-now-study-multinational-businesses-walmart-apple-shell> ; <http://www.corporationsandhealth.org/2015/08/27/the-100-largest-governments-and-corporations-by-revenue/>;

    http://www.globaljustice.org.uk/sites/default/files/files/resources/controlling_corporations_briefing.pdf.

  75. See 1.1 of Guiding Principles on Business and Human Rights.

  76. See 15(b) of Guiding Principles on Business and Human Rights.

  77. See David Weissbrodt, Human Rights Standards Concerning Transnational Corporations and Other Business Entities, 23 Minn J Intl L 135. p.156

  78. <http://www.globaljustice.org.uk/sites/default/files/files/resources/controlling_corporations_briefing.pdf>.

  79. Upendra Baxi, The Future of Human Rights (OUP, New Delhi, 2005) 281.

  80. ibid, 276.

  81. See <http://www.mea.gov.in/media-briefings.htm?dtl/26979/Transcript_of_Weekly_Media_Briefing_by_Official_Spokesperson_July_01_2016>.

  82.  Suresh Kumar Koushal v. Naz Foundation (2014) I SCC 1.

  83. <https://indiankanoon.org/doc/193543132/>.

  84. <https://www.right-docs.org/doc/a-hrc-res-32-2/>.

  85. ibid.

  86. Adopted by the World Conference on Human Rights in Vienna on 25 June 1993, <http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx>.

  87. Article 25(1) Subject to public order, morality and health and to other provisions of this Part, all persons are equally entitled to freedom of conscience, and the right to profess, practice and propagate religion.

  88. Article 17. “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.

  89. CSMR, Dignity First: One year of resistance to recriminalisation of LGBT lives, <http://altlawforum.org/campaigns/dignity-first-one-year-of-resistance-to-re-criminalisation-of-lgbt-lives/>.

  90. The vote was occasioned by a Russian draft proposal which sought to nullify the proposal by the Secretary General to extend same sex partnership benefits based on the legal status in the country of origin. <http://undocs.org/A/C.5/69/L.9>. The results of the vote can be found at <https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/097/73/PDF/N1509773.pdf?OpenElement>.

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  1. Arc International, Geneva, Switzerland

    Arvind Narrain

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Correspondence to Arvind Narrain.

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The author would like to thank R. Iniyan Ilango, United Nations Advocacy Programme Manager, Forum Asia; Michael Ineichen—Human Rights Council Advocacy Director, International Service for Human Rights and Pooja Patel—Programme manager (Women’s Rights and LGBT rights) also from International Service for Human Rights for very helpful discussions. The author would also like to thank Abhimanyu George Jain for suggesting a research agenda on the above topic and further instructive comments and feedback.

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Narrain, A. India’s role in the Human Rights Council: Is there a constitutional vision in its foreign policy?. Indian Journal of International Law 57, 87–120 (2017). https://doi.org/10.1007/s40901-018-0078-7

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