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2014 CLCSLR
VOL. 2 ISSUE 1
TOWARDS THE ELECTRONIC POLICE STATE: ADDRESSING THE CONCERNS
Shamba Dey * The electronic police state is one that engages in mass surveillance of telephone traffic, email, web and Internet searches, radio, and other forms of electronic communication, including video surveillance. The Government of India conceived the idea of the electronic police state in 2009 when it proposed to establish the Central Monitoring System, which is similar to the surveillance program of the National Security Agency in the United States of America. The formation of the Central Monitoring System has however actuated a public debate on the violation of individual privacy coupled with the lack of transparency in surveillance operations which greatly accentuates the possibility of abuse of Executive authority. This article thus proceeds in four parts. Part I reviews mass surveillance systems as a necessary tool for fulfilling the social, economic and political aspirations of individuals. Part II examines the concept of privacy in the light of changing technologies and evolving societal needs, arguing that privacy is a broad, subjective, contextual and self-referential concept, and that there may be no legitimate basis for protection of privacy against mass surveillance. This Part further argues that mass surveillance systems have the potential to strengthen, rather than weaken privacy. Part III analyses the contentious argument that lack of transparency in the operations of the Central Monitoring System and its consequential effects violate civil liberties, fairness, and justice. Finally, Part IV discusses the possibility of overreach by the Executive and the checks and balances necessary to mitigate such risks.
I.
BACKGROUND: THE PURPOSE AND NECESSITY OF SURVEILLANCE
Surveillance is undertaken with twin purpose in mind- one being welfare and the other being security. This is true of both private organisations and the government. Private organisations use surveillance and data collection to protect their physical resources and information systems from external threats and to market their goods and services.1 The government uses surveillance, data * 1
Ist Year, LL.B., Government Law College, Mumbai. Fred H.Cate, Government Data Mining: The Need for a Legal Framework, 43 H ARV . C.R.-C.L. See Fred L. R EV EV . 43, 440 - 44 (2008) at 435 ("advances in digital technology have greatly expanded the volume of personal data da ta created as a s individuals engage in everyday activities"). ac tivities").
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collection, and data mining to identify problems, anticipate and counter potential threats, govern populace and deliver valuable social welfare services.2 Traditionally, government agencies across the world have collected and analysed statistical data. Instances of such data collection include but are not limited to assessment of land revenue, assessment of income of individuals and corporations for tax purposes, preparation of census reports, birth and death certificates, preparation of ration cards, poverty lists and electoral lists. The data so collected drives the planning and execution of the government’s agenda on welfare. In fact, providing most of the basic social services such as welfare benefits to an ever-increasing population and protecting the rights of people (such as rights against employment discrimination) are difficult without extensive data harvesting tools because without these tools, beneficiaries would not otherwise be correctly identified. As David Lyon explains, “The surveillance systems of advanced bureaucratic nation-states are not so much the repressive machines that pessimists imply, but the outcome of aspirations and strivings for citizenship. If government departments are to treat people equally, then those people must be individually identified. To exercise the right to vote, one's name must appear on the electoral roll; to claim welfare benefits, personal details must be documented. Thus, the individuation that treats people in their own right, rather than merely as members of families or communities, means freedom from specific constraints but also greater opportunities for surveillance and control on the part of a centralised state.” 3 Surveillance,4 therefore, is a way of governing. With newer and faster developments in information technology, a greater level of surveillance, one that extends to the monitoring, collection and analysis of information that may not be voluntarily made accessible by the citizen becomes unavoidable. As technologies that let users discover and analyse the current world trends become more powerful, governments seek to
2
Id.
3
D AVID L YON, THE ELECTRONIC E YE: THE R ISE ISE OF SURVEILLANCE SOCIETY 32-33 (1994) (Quoting NICHOLAS ABERCROMBIE , SOVEREIGN INDIVIDUALS OF C APITALISM (1994)). As per the New Penguin Compact English Dictionary (2001) Penguin Books, ‘Surveillance’ means ‘close watch kept over someone e.g. by a detective’. In the context of the paragraph, the term is not to be understood in its literal sense, but in the sense of general data collection activity legitimately undertaken by any government.
4
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use them for protection and welfare purposes.5 For example, in Europe and United Kingdom, governments have installed tele-care services that use remote monitoring technology to enable vulnerable people to live independently in their own homes. 6 The technology employs electronic sensors to transmit information about the user's location and patterns of behavior in the user's home to an external hub, where it can trigger an intervention in case of an emergency. Since 2005, China has begun to expand its surveillance through its Field Epidemiology Training Program; Brazil and Argentina have chosen to use World Bank loans to develop surveillance capacity in public healthcare, while the U.S. Agency for International Development has redesigned its surveillance strategy to focus on the use of data to improve public health interventions. 7 Additionally with the reduced cost of technologies, tech nologies,8 there is opportunity for the government to use these technologies to collect, collate and analyse more information. Increased focus on surveillance also becomes necessary in light of the wide accessibility of information and telecommunication technologies. Terrorist Terr orist groups and other such organisations use digital and mobile technologies to communicate with each other9 and to cover their identities. Since the September 11 attacks,10 terrorist strikes have become a major cause of concern for national defense, foreign and home affairs for most countries, including India. Unlike in the nineteenth and twentieth century, an adversary today need not necessarily be another nation; terrorist organisations, hackers and criminals have emerged as newer forms of threat with a wide range of unprecedented challenges.
5
James Dempsey and Lara Flint, Commercial Data and National Security , 72 G EO. W ASH. L. R EV EV . 1459, 1464-68 (2004) at 1468-69. 6 See Department of Health, Older People and Disability Division, Building Telecare in England (July 19, 2005; See also , Sorell T., Draper H, Telecare, surveillance, and the welfare state, AM J BIOETH (2012) 12(9), 36-44. 7 See J AMISON DT, BREMAN JG, MEASHAM AR, et al, DISEASE CONTROL PRIORITIES IN DEVELOPING COUNTRIES., (Washington (DC): World Bank, 2 nd ed. 2006). 8 Patricia Bellia, The Memory Gap in Surveillance Law , 75 U. CHI. L. R EV EV . 137, 142-53 (2008). 9 G Weimann, Terror on the Internet : The New Arena, the New Challenges, (Washington, D.C., United States Institute of Peace Press, 2006) (describing Al Qaeda's use of the Internet); Audrey Kurth Cronin, Behind the Curve: Globalization and International Terrorism , 27 INTL. SECURITY 30, 46-48 (2002-03); P HILIP BOBBITT, TERROR AND CONSENT: THE W ARS FOR THE T WENTY FIRST CENTURY , 55-57 (2008). 10 The September 11 attacks were a series of terrorist attacks launched upon the United States on September 11, 2001, see United States v. Mohammed, et al. D-126 Ruling.
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Terrorists can move easily and change cell phones and e-mail addresses at will, hackers can gain access to government computer networks, and criminals can take advantage of weaknesses in digital networks to not only commit conventional crimes such as embezzlement of funds but also perpetrate a whole new range of offences like phishing.11 The digital technologies that inadvertently aid the commission of such offences necessitate the government to invest in counter-surveillance 12 to identify and prevent threats posed by the use of such technologies by criminals. This modern-day form of terror forces intelligence operatives to act swiftly and for this purpose, use new and expeditious ways to gather information in order to preempt such crimes. 13 This is significantly different from the older models of law enforcement where the focus has been on ex post apprehension and prosecution of wrongdoers. 14 Today, modern surveillance makes it possible to prevent wrongdoings ex ante . Furthermore, unlike ordinary criminal investigations, national security investigations and counter-terrorist surveillance often have remarkable breadth– spanning long periods of time, multiple geographic regions, and numerous individuals, whose identities are often unknown to the intelligence community at the outset and hence the need for collection and record keeping of historical data on various aspects of individuals is inevitable. Data interceptions thus become vital for gathering intelligence about terrorist organisations and unlawful activities. The very nature of these crimes makes a strong argument in favour of giving the government a certain level of latitude in the gathering of intelligence. The government cannot in fact identify preemptively who a
11 Phishing
is the act of attempting to acquire information such as usernames, passwords, and credit card details (and sometimes, indirectly, money) by masquerading as a trustworthy entity in an electronic communication. see Handbook by Peter see Handbook of Information and Communication Security by Stavroulakis, Stavroulakis, Mark Stamp, at 433. 12 Supra note note 4. Here and henceforth (unless specifically mentioned to the contrary) the term ‘surveillance’ is to be understood in its literal sense. 13 Judge Richard Allen Posner, Our Domestic Intelligence Crisis , The Washington Post, December 21, 2005: “..The information that enables the detection of an impending attack may be scattered around the world in tiny bits. A much wider, finer-meshed net must be cast than when investigating investiga ting a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.” 14 Scott Charney, The Internet, Law Enforcement, and Security , PRACTICING L. INST., FIFTH ANNUAL L AW INSTITUTE at 944 (discussing the traditional model of law enforcement before the advent of new information technologies).
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terrorist is, until after his or other people’s privacy has been ‘violated’. Innocent people, such as unwitting neighbors of terrorists, may, have valuable counterterrorist information, which can be tapped and used for the protection of citizen’s right to a safe and secure environment. The existing system is a reactive system, relatively centralised, publicly managed, and rooted in human discretion.15 Manual patrolling and collection of evidence takes a very long time, which can often lead to costly delays for both the victim and the government. However, through an automated surveillance system, these functions will be performed on secured electronic links and there will be minimum manual intervention. As Kozlovski explains, “By predicting when, how, ho w, and by whom a crime will be committed, it aims to enable efficient intervention. Automated tools constantly monitor the environment to match users' risk profiles against dynamically identified patterns of criminal behaviour. Patterns of previous computer crimes are coded as ‘crime signatures’ which monitor for anomalies or deviations from ‘normal’ behaviour. The patterns of ‘normal’ behaviour are coded and an algorithm watches for a certain level of deviation from them.” 16 Hence, interception through surveillance is instantaneous and more reliable than fallible human officers. This leaves very little scope for violating the law;17 even if a violation occurs, the surveillance systems can help in the investigations by quickly providing more accurate evidence. It is perhaps against this backdrop that the government has taken the initiative to build the Central Monitoring System (CMS).
II.
THE ILLUSION OF PRIVACY
The project to build a national mass surveillance and data mining system in India began in 2009.18 The Central Monitoring System, which was reportedly deployed in 2013, 19 uses advanced advance d computer compu ter technologies techno logies to collect large amounts of personal data of all individuals. The technology is used to monitor and record phone calls, to read emails and messages, to scan Internetbased activities of individuals, to track the location of individuals in real time 15 Nimrod 16 17
18 19
Kozlovski, Designing Accountable Online Policing, 107 Id. at p.110. MIREILLE HILDEBRANDT, JEANNE G AAKEER , HUMAN L AW AND COMPUTER L AW : COMPARATIVE PERSPECTIVES, (Springer 2013) p.70. Centralised System to Monitor Communications , Press Information Bureau, 26 November, 2009. Deepa Kurup, In the dark about ‘India’s Prism’ , The Hindu, 16 June, 2013. See Deepa
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and to analyse behavioural patterns of individuals based on the collected information. However, the formation of the Central Monitoring System has raised serious concerns of violation of civil liberties and individuals’ right to privacy. The debate over surveillance involves a clash between the relevant public interests such as national security or the detection and prevention of crime on one hand, and the individual’s interest in preserving his or her privacy on the other. Much of this clash however results from a mistaken understanding of the term ‘violation of privacy’, and it is especially so in the context of the changing information age. In this Part, the author examines the spiraling complexity in distinguishing between private and public data and whether privacy rights are at all violated when the government collects data about individuals. Privacy in general means the right of an individual to live one's life in seclusion without being subjected to unwarranted and undesired publicity,20 to decide for oneself the extent and degree of sharing one’s thoughts and feelings. 21 Privacy could c ould also be interpreted interp reted as a property prop erty right, giving individuals ownership over their personal data. 22 This latter view, in fact, originated in ancient Athenian society 23 and thereafter found place in English and American jurisprudence. Although it is an unconventional comparison to make, there are some similarities between property and privacy rights. For example, just as authors or musicians have the right to prevent duplication and propagation of their works, so too an individual can be said to have the right to limit access to his personal data. In Pope v. Curl ,24 Curl, a bookseller, obtained and published, without consent of the authors, personal letters written to and by well known literary figures, including Alexander Pope and Jonathan Swift. Lord Chancellor upheld the privacy of Pope’s letters on the grounds that the writer of a letter has a property right in his words. Similarly, in Yovatt v. Winyard , 25 the Court extended extende d property rights protections to cover personal
20
Kerby v. Hal Roach Studies, 1942 53 Cali. App. 207, 127. ALAN W ESTIN ESTIN, PRIVACY AND FREEDOM , (New York: Atheneum 1967), 373. 22 W.A.Parent, Privacy, Morality, and the Law , PHILOSOPHY AND PUBLIC AFFAIRS, Vol. 12, no. 4 (Princeton, NJ.: Princeton University Press, 1983), pp. 269-88; See generally, generally, Lawrence Lessig, Code : Version 2.0 (2006). 23 B ARRINGTON MOORE, JR .,., PRIVACY : S TUDIES IN SOCIAL AND CULTURAL HISTORY (Armonk, (Armonk, N.Y: M. E. Sharpe, 1984), pp. 82, 108, and 124. 24 (1741) 2 Atk. 342. 25 (1820) 37 Eng. Rep. 425,426 (Ch.). 21
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secrets. Thus, “what we now call ‘unfair competition’ and ‘plagiarism’ and ‘privacy’, were all wrapped together under the principle of property”.26 The author however contends that these concepts of privacy are very rigid and create problems. Every individual is continually engaged in a personal adjustment process in which he balances his want for privacy with his desire to reveal his personal matters to others.27 Professor Gary Marx comments on how individuals differ in the methods of communication of personal matters and in their general approach to concealment and revelation. The societal notions of gender are also illustrated. Society, on one hand; believes that women are more ‘public’ in the sense of sharing their thoughts and feelings, and on the other hand due to the greater modesty shown by women, they may be known to be more ‘private’. Regional variation may also exist. “Thus persons in California, in particular, are often stereotyped as being more forthcoming in expressing the personal. That also seems true of Americans in general relative to Europeans.” Europeans.”28 It is due to the social and environmental requirements of the society which one has to adjust to, that an individual, willingly and unwillingly, leaves traces of himself wherever he goes and hence reveals private information to others. An individual has to work with other individuals, live together and make friends. Such other individuals become aware of his habits and behaviours. The individual is fully aware of the private information he shares yet he does so because of reasons that are inherently social and perhaps, psychological too. 29 Exchange of information can also happen without the individual’s awareness. Strangers in public places can collect information about an individual. Likewise, talking on the cell-phone in buses, cars, trains and other public places, reveals IGHT TO BE LET ALONE (New MORRIS ERNST AND ALAN SCHWARTZ, PRIVACY : THE R IGHT York: Macmillan, Macmill an, 1962), pp. 6-12. 27 Supra note note 19. 28 Gary Marx, Murky Conceptual Conceptua l Waters: the t he Public and an d the Private, E THICS AND INFORMATION TECHNOLOGY , 2001. Vol. 3, no. 3, at 157-169. 29 Michael McFarland, McFarland, SJ, Why We Care about Privacy , Markkula Center for Applied Ethics, Santa Clara University: “These associations are not merely preferences or matters of convenience. Therefore social obligations, that is, all that is required to maintain the complex web of relationships in which each person lives, are fundamental human obligations. These obligations include the sharing of personal information, which is a necessary part of any meaningful relationship, whether it is personal, community, political or bureaucratic. Friendship necessarily requires self-revelation. Belonging to a voluntary association entails sharing something of one's history, one's ideas and aspirations, and one's current circumstances.” available at http://www.scu.edu/ethics/pr acticing/focusareas/technology/internet/privacy/why-care-about-privacy.html 26
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information about a person’s private and confidential matters in part or in whole, to strangers. However, even when aware, an individual has to allow such collection of personal data out of necessity and convenience. For example, CCTVs in hospitals, hotels, shopping malls, traffic cameras, and parking-lot cameras capture a bulk of information on a regular basis. Banks know information about an individual’s clients and amounts transferred. Telephone and mobile operators know the numbers dialed, the duration of calls, messages sent, and the whereabouts of an individual. 30 Mobile applications like GPS collect information about user locations in very large quantities. Personal data therefore assumes a fluid nature- it flows easily and eventually falls out of the control of the individual. The same is true of the Internet, where such fluidity of data is greater. Search engines reveal bulk of information about individuals in the form of comments made, statements written and even videos. They also collect information about past searches made by individuals, which are then used to drive audience-specific advertisements. Emails, sent and received, drafted but not sent, spam mails, mailing lists are all stored by the service provider. This could be considered by some to be an intrusion upon one’s privacy, the risk being assumed knowingly and voluntarily by the individual.31 The acceptance of such risk comes from explicitly consenting to the terms of use, or implicitly by enabling cookies in their web browser. Today most individuals see social networking sites as an important medium of communication. Eric Schmidt, the CEO of Google, has rightly pointed out in an interview with PBS, that “the next generation is infinitely more social online” and less private, “as evidenced by their Facebook pictures”. 32 Facebook and Twitter store information about an individual’s personality, habits, and opinions. 33 Status messages, posts, pictures and tweets, even if they have been deleted from the view of the public are nevertheless known to the website’s operators. 34 Facebook itself tells other people what an 30 "Apple
denies tracking iPhone users, but promises changes", Computerworld , April 27, 2011. See e.g See e.g .,., Smith v. Maryland, 442 U.S. 735, 745 (1979); United States v. Miller, 425 U.S. 435, 443 (1976). 32 Polly Sprenger, Sun on Privacy: 'Get Over It', Wired, January 26, 26 , 1999. 33 Eric Lichtblau, F.B.I. Data Mining Reached Beyond Initial Targets , New York Times, Sept. 9, 2007. 34 Facebook came under the scanner for the ‘User Content Posted on the Site’ clause in its ‘Terms of Use’ which read: “You may remove your User Content from the Site at any time. 31
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individual is saying, where he is visiting and with whom. 35 Data is transferred to Facebook's servers in the USA but users are not given sufficient information about this and the terminology in Facebook's conditions of use and privacy statements may not meet the legal requirements requirements relevant for compliance of legal notice, privacy consent, and general terms of use. 36 It must be stated here that the aim of these examples is not to draw a comparison between the activities of private organisations and the Central Monitoring System or to suggest that the government can collect data just because private organisations are also collecting data. The aim is to underline the simple fact that new technologies have increasingly blurred the distinction between public and private. Not only have individuals, on their own, given up much of their privacy 37 to the digital space and physical space, but it has also become practically impossible for individuals to control what other people say, know or think about them. What used to be private information in the preinformation age is now increasingly becoming public and “rather than approaching the public and private as one-dimensional, rigidly dichotomous If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.” The ‘license granted’ refers to t o the license that Facebook has to your ‘name, ‘na me, likeness, and image’ to use in promotions and advertising. Facebook changed its terms of use on Feb 4, 2009. The new terms of use deleted the phrase that license would ‘automatically expire’ if a user chose to remove content. By omitting this line, Facebook license extends to adopt users' content perpetually and irrevocably years after the content has been deleted, Facebook Privacy Change Sparks Federal Complaint , PC World. Retrieved on March 5, 2009. 35 The Facebook privacy policy once stated, "We may use information about you that we collect from other sources, including but not limited to newspapers and Internet sources such as blogs, instant messaging services and other users of Facebook, to supplement your profile." Facebook Privacy Policy, Retrieved on December 8, 2010. 36 See compliant and settlement order of United States Federal Trade Commission (FTC) with Facebook available at http://www.ftc.gov/sites/default/files/documents/cases/2011/11/111129facebookcmpt.pd f and http://www.ftc.gov/news-events/press-releases/2011/11/facebook-settles-ftc-charges-itdeceived-consumers-failing-keep); See Lane v. Facebook, 10-16380, U.S. Court of Appeals, Ninth Circuit (San Francisco). 37
D ANIEL SOLOVE, UNDERSTANDING PRIVACY , (Harvard University Press, 2008): “Although polls indicate that people care deeply about privacy, people routinely give out their personal information and willingly reveal intimate details about their lives on the Internet. Law professor Eric Goldman points out that people’s ‘stated privacy concerns diverge from what [they] do.’ Canadian scholar Calvin Gotlieb declares that ‘most people, when other interests are at stake, do not care enough about privacy to value it’.”
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and absolute fixed concepts, they are best conceptualised as multi-dimensional (with dimensions sometimes overlapping or blurred and at other times cross cutting or oppositional), continuous and relative, or contextual, whose meaning lies in how they are interpreted and framed”. 38 However where huge volumes of private information is transferred from the secluded domain to the public domain, an important question that lingers is whether the individual can still, in the name of his right to privacy, control how the personal information (which is now public) would be used by others. In this regard, the Supreme Court of India has laid down an exception to the right to control of information stating where a matter becomes a matter of public record, the right to privacy no longer exists, and it becomes a legitimate subject for comment. 39 This means, there can be no expectation of privacy once the private information becomes public, which simplistically put, implies that there is a loss of ownership over personal data. The US Supreme Court also takes a similar view: “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”40 This means that when the police are using a beeper device to track a suspect’s car on public streets, it is capturing public information because the suspect cannot legitimately expect to be private in a public place. 41 Similarly, when a person uses a telephone, he needs to realise that he must ‘convey’ phone numbers to the telephone company, since it is through the telephonecompany’s switching equipment that his calls are completed. A subscriber knows that the telephone-company has facilities for making permanent records of the numbers he dials, for he sees a list of his calls on the monthly bills and the company does record information for legitimate business purposes. As long as the telephone company is capable of recording and disclosing the numbers its customers dialed through its electronic system, the customer cannot assume that the company’s employees would not do so. It is too much to believe that a subscriber, under these circumstances, should harbour any general expectation of privacy.42 Similarly, it can be argued that there is no legitimate expectation of 38 Supra
Govind v State of Madhya Pradesh, 1975 2 SCC 148 (SC held that privacy note 26; See Govind rights are not absolute). 39 R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632. 40 Katz v United States, 389 U.S. 347, 351 (1967). 41 United States v. Knotts, 460 U.S. 276, 281(1983). 281(1983). 42 Smith v. Maryland, 442 U.S. 735, 742-43 (1979); United States v. New York Tel. Co., 434 U.S., at 174 -175.
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privacy of data relating to an individual’s bank accounts, cheques and transactions available with a bank, because the individual does not have ownership, possession, or control over the data. Instead this data is now part of the stored business records of the bank. 43 If the government issues a notice to the bank, it simply wants to inspect data that is in the control of the bank. The same argument may be extended to an individual's email data held by Google Mail, in stored form in its servers. 44 While the nature of the relationship of an individual with his bank or telephone company may be different from his relationship with Google, the one thing that is common in all these technologies is that the individual takes on the risk associated with the transfer of data beyond his private domain by either putting himself into a stream of activity that he doesn’t control45 or by giving third party access. A case where the actual conversations in a phone pho ne call or contents c ontents of an email are wire tapped may require further analysis. Here, the subject matter is not public but a matter that an individual seeks to preserve as private. There is no assumption of risk or voluntary release of control. However, in the landmark case of Katz 46 , Justice Hugo Black of the US Supreme Court Co urt declined to accept that phone conversations are constitutionally protected. On the contrary, he opined that the natural uninvited risk of eavesdropping cannot be completely eliminated and there can be no privacy protection against such eavesdropping. 47 Likewise, many in the legal community are divided on the question of whether conversations and things intimately private are at all subject to privacy protections. There are no bright line rules. Many US Courts have found no expectation of privacy in the content of emails because of Internet Service Provider (ISP) access. 48 Email always runs “the risk that an employee or other 43 United
States v. Miller, 425 U.S. 435, 446 (1976).
44 Lessig,
supra note 20, p. 205: “…unlike a telephone call, this content is saved in a searchable
form. Companies now invest millions in technologies that scan the conversations of employees that before were effectively private. Both in real time and in retrospect, the content of conversations can become known”; See also, JEFFREY R OSEN OSEN, THE N AKED CROWD: R ECLAIMING ECLAIMING SECURITY AND FREEDOM IN AN ANXIOUS AGE (New York: Random House, 2004), 34–53. 45 Lessig, supra note 20, at 209. 46 Supra note 38. 47 See Dissenting Dissenting Opinion of Justice Hugo Black. 48 McLaren v. Microsoft Corp ., No. 05-97-00824-CV, 1999 WL 339015, at *4 (Tex. App. May 28, 1999) (asserting
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person with direct access to the network service will access the email, despite any company promises to the contrary”. 49 Some other courts have indicated in dicta that, because of third party exposure, email content is of lesser protected status than mail or telephone content and that the privacy of email depends, not on social expectation or whether the content is at issue, but on the fact of third party access. 50 In India, In dia, wiretapping of phone pho ne conversations between two individuals would not amount to violation of privacy if it can be satisfactorily shown that the recorded information had relationship to public interest. 51 Considering the prevailing jurisprudence on personal liberty under Article 21 of the Constitution52, one would therefore have to resolve the issue by carefully measuring the interests at stake- privacy rights and national interest; balancing the two would mean that the degree of eavesdropping permitted should “be
defendant’s stored emails differed from tangible stored items because such emails were “first transmitted over the network and were at some point accessible by a third party”). 49 United States v. Maxwell, 45 M.J. M .J. 406 (C.A.A.F. 1996). at 418. 50 United States v. Charbonneau, 979 F. Supp. 1177, 1184 (1997); Leventhal v. Knapek, 266 F.3d 64, 74 (2d (2d Cir. 2001); Steve Jackson Games, Games, Inc. v. United States States Secret Service Service , 36 F.3d 457, 460-64 (5th Cir. 1994) (held that that stored stored e-mails e-mails not intercepted intercepted contemporaneously with transmission are not protected under federal privacy laws). 51 § 8(1)(j) of The Right to Information Act, (2005): “Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted unwarrant ed invasion invasio n of the privacy of the individual individ ual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature Legislature shall not be denied to any person”. 52 The Supreme Court has upheld the constitutional validity of interceptions, as provided in § 5(2) of Indian Telegraph Act, 1885 1885 and monitoring monitoring through through its its order dated December December 18, 18, 1996 and laid down guidelines limiting its scope to five instances: “national sovereignty and integrity, state security, friendly relations with foreign states, public order or for preventing incitement to the commission of an offence.”; See PUCL v. Union of India, AIR 1997 SC 568, wherein the Court rejected the notion of ‘prior judicial scrutiny’ as a procedural safeguard and accepted the contention that administrative safeguards would be sufficient. More recently, in consistency with Art 19(2) of the Constitution, § 69 of the Information Technology Technol ogy Act, 2008 has expanded expande d the power of the Government Governme nt to decrypt information informati on and conduct interception which may be exercised when it is necessary or expedient to do so in the interest of the sovereignty or integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence, for reasons to be recorded in writing, by order, direct any agency of the Government to intercept any information transmitted through any computer resource.
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directly proportional to its efficacy and inversely proportional to its intrusiveness”.53 What emerges from the above discourse is that the data collection activity of the Central Monitoring System does not pose a privacy violation problem. Further, there seems to be no reason why a conflict between the public interest and individual privacy needs to exist, when one looks at privacy as a collective right. Discussions about privacy often take form around a particular technology or social measure that violates privacy and hence it is argued that such measure be rejected. However, it is wrong to treat privacy as an exclusive personal privilege, and not in the light of its general importance as a public good.54 For example, collecting names of sex offenders and keeping them in the public domain may be seen by some as a violation of privacy of the accused but such data serves to protect a community from future crime. Similarly, permitting only consensual rather than mandatory testing of infants for HIV, with no disclosure of results, is a danger to common good- the suffering of considerable numbers of children that could be reduced with early detection. In this case, the right to life outweighs any risk of discrimination against mothers. Similarly, “societies do not become totalitarian by use of ID cards; they abuse ID cards because they are totalitarian. Democracy has the adaptability to use ID cards and remain democratic” 55 because such technologies increase fairness and accuracy,56 which is absolutely essential if the government were to detect tax evaders, welfare cheats, mafia, illegal immigrants and thieves who steal the very identities of citizens. “Reliable identification can increase, not diminish, citizen's privacy and autonomy”; 57 if a system like the Central Monitoring System that facilitates the collection of large volumes of data exists, it would assist the government's agencies and enforcement officers in identification, and thereby strengthen public welfare. 53
IEW OF PRIVACY AS A CHECK AGAINST ALEXANDER DIAZ MORGAN, A BROADENED V IEW INGDOM , GOVERNMENT ACCESS TO EMAIL IN THE UNITED S TATES AND UNITED K INGDOM INTERNATIONAL L AW AND POLITICS, Volume 40:803, at 843. 54 P R EGAN EGAN, LEGISLATING PRIVACY : TECHNOLOGY , SOCIAL V ALUES, AND PUBLIC POLICY . Chapel Hill, U.S.: The University of North Carolina Press 1995. ("If we did recognize the collective or public-good value of privacy, as well as the common and public value of privacy, those advocating privacy protections would have a stronger basis upon which to argue for its protection.”). 55 AMITAI E TZIONI, THE LIMITS OF PRIVACY , New York 1999, p.184. 56 Eugene Volokh, The Benefits of Surveillance Surveillance , THE R ESPONSIVE ESPONSIVE COMMUNITY , Fall 2002, at 9. 57 Supra note 53.
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LACK OF TRANSPARENCY AND FEAR OF MISUSE
In the electronic police state, the Central Monitoring System would monitor the individual after initial collection of data by building a profile of the individual. The concern here is that the data collected might be misconstrued or misused against the individual by constructing a wrong profile about him. This is because of the lack of transparency- individuals are apprehensive about the rules governing the accessibility and interpretation of the data and the reasons and implications of such surveillance. Consider an example. A man staring fixedly at an individual bothers that individual not because the man staring might discover what the individual is doing privately, but because the man has violated norms of socially acceptable behavior and may possibly commit acts of nuisance against the individual in future. This, in many ways, may also be true of people’s perception about government surveillance. Individuals do speak of ‘privacy’, but what frightens them is not the abstract notion that the government might be closely watching them; rather, the possibility that the information gathered will be misconstrued or abused. People may fear that a government agent, by threatening to release information, can exert illegitimate pressure on them. They may be afraid of being falsely incriminated based on a pattern of circumstantial activities. This brings out an essential difference between the privacy of the government and the privacy of individuals: the government has greater power than individuals. When the government's privacy is violated through unauthorised disclosure of classified documents, the government can prosecute the leaker, or employ other means to prevent harm. In contrast, individuals have far less power and fewer ways to protect themselves. Under these circumstances, individuals would find it “harder to do anything that deviates from accepted social behavior”. 58 Most people would be afraid to stand apart, to be different, even if there is no explicit threat of retaliation. Hence individuals would feel that it is better to conform because they would not know what the technology is capable of interpreting.
58
Michael McFarland, SJ, supra note 27; Westin, supra note 19, p.20-32; C ARL J. FRIEDRICH ZBIGNIEW K.BRZEZINSKI, TOTALITARIAN DICTATORSHIP AND AND , (Cambridge, MA: Harvard University Press, 1963), p. 179; Brandeis and AUTOCRACY Warren, The Right to Privacy, 4 H ARVARD L.R EV EV . 193 (1890) at 196.
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However, such fears of misinterpretation and misuse appear to the author to be far too remote for two reasons. First, misinterpretation and misuse can happen at the hands of any person who stores any form of information, whether he is a private party p arty or a government agent, and an d consequent harm can be inflicted upon an innocent person. While on one hand bona fide information can be passed on to the police (such as naming a tax evader), on the other hand any malicious person can also give false information to the police about an innocent person and initiate a criminal investigation against him or get him wrongfully detained. In no society, have people been absolutely free from wrongful and arbitrary interventions of the state authorities or private parties. The important point to note here is that people can become victims of abuse even when they have strong control over their personal activities and there is little government surveillance. On the contrary, government surveillance can help reduce the misuse of intelligence against innocent citizens, such as preventing sale of personal data by an Internet company to third parties, bogus job advertisements or credit card frauds. Similarly, the Central Monitoring System, being more accurate and consistent, can also limit the risk of government abuse: the cameras that might video-tape an act of robbery can also video-tape evidence of police misconduct. Video-tape evidence eviden ce can decrease the risk that the wrong person would be arrested. Second, the Central Monitoring System only aims at detecting the possibility of crime and deviations from law and order. The task of enforcement, however, is ultimately upon the police, military, or other departmental authorities, who would have to act within the due process of law. Thus, even if misinterpretation of data occurs resulting in violation of any legal right of an innocent person, there is always a remedy available against the enforcing authority that has made the mistake, whether willfully or not. An important practical question that arises here is whether the individual who feels that his protected interests are violated must bear the burden of proof. In this regard, legal scholar McCormick writes that: “The proponent of such a ‘disfavored contention’ should have the burden of proof.”59 The individual moving to suppress evidence and seeking exclusion of probative facts should bear some burden in showing the need for such
59
MC.CORMICK ON E VIDENCE §337, at 786 (3rd ed. 1972).
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exclusion. However, the burden may also shift to the State to justify that there has been no violation of privacy in the surveillance act complained of. Surveillance in itself does not prevent individuals from access to the judiciary. This means that there is no reason why an individual has to be any overtly careful about what he says on a social networking site or who he associates with simply out of fear of the Central Monitoring System’s profile building ability, unless such expression or association is prohibited by a statute. Ideally, where one is not committing any unlawful act, there is no reason to believe that he would be subject to incrimination, detention, enquiry, or labelling by the Central Monitoring System. However, where one has a history of unlawful acts, his profile may be placed on a ‘caution-list’, and where there is sufficient apprehension, the government may solely for purposes permitted under law proceed to investigate and take preventive measures. Although individuals deeply fear the spill-over of data into the hands of others, but as already discussed in the previous section, the law provides protection only when there is a legal basis and legitimate expectation of privacy, but not in all cases. 60 If there is no legitimate expectation of privacy to be found in the expressions and associations of an individual, there may not be much legal ground to claim his privacy, even though he may fiercely want to preserve it. 61 However at the same time, law enforcement officers should also satisfy the court of the valid grounds for monitoring the activities of the plaintiff, retrospectively, failing which the injured plaintiff can recover damages. What excuses the lack of transparency in the activities of Central Monitoring System is the need for secrecy in certain government operations. In order to function, government agencies sometimes need to operate away from the public eye. Certain sensitive police and military operations and defense strategies need to be carried out secretly. Diplomats may need to take different approaches with different States. The monitoring techniques and algorithms used by the Central Monitoring System would assist the operations of government decision-makers. Reasonable restrictions need to be placed on access to data, especially when it concerns national security. While transparency
60 See Malak Malak Singh v State of Punjab and Haryana AIR 1981 SC 760. 61 Govind v State of Madhya Pradesh, 1975 2 SCC 148 (The
Supreme Court held that constitution makers did not intend to protect mere personal sensitiveness).
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of operations may be important, it cannot be taken to mean that the government has to reveal how the algorithms make predictions, who analyses the data, how long the data is stored etc., because these revelations can be easily exploited by perpetrators to their advantage and frustrate the whole purpose of surveillance.
IV.
SAFEGUARDING SAFEGUARDING AGAINST THE EXECUTIVE
Transparency requires self-restrained use of power 62 and more so because invisible power can lead to abuse. Fear of such abuse led the Roman satirist Juvenal to question: quis custodiet ipso custodes , or “who watches the watchers?” 63 Without considerable oversight, “the veil drawn over access to information may become an impenetrable wall, with the Judiciary or the Legislature loathing to second-guess those responsible for ensuring national security”64, and none may inspect and check the use or abuse of such power.65 Thus, what should be a legitimate reason for concern is not the fact that the activities of CMS seem to be against privacy rights or are not entirely transparent but the possibility that with more information in the control of the Executive branch, the balance of power may tilt in its favor. The Executive branch serves as the public’s agent for purposes of implementing and enforcing the regulatory mandates of the Parliament and there are agency costs in this arrangement when administrators use their position to gain advantage over others. As Justice Jackson explained in Irvine v. California , the duties and responsibilities of Executive officers are “to enforce the laws, to investigate, and to prosecute. Those charged with this duty should not be the sole judges of when to utilise constitutionally sensitive means in pursuing their tasks”. 66 With regards to the CMS, there is a risk that the Executive branch agents may breach the authority vested in them and use the 62
Dawn Johnsen, Functional Departmentalism and Non-judicial Interpretation: Who Determines Constitutional Meaning? , 67 L AW & CONTEMP . PROBS. 105, 115 (2004) (“The effectiveness of...principled self-restraint and external political checks in turn depends heavily on the traditional values of transparency and accountability.”) 63 Satires (Satire (Satire VI, lines 347–8). 64 Laura Donohue, Anglo-American Donohue, Anglo-American Privacy and Surveillance , 96 J. C RIM. L.& CRIMINOLOGY 1059, 1059, 1167-70 (2006), at 1193. 65 Griffin Dunham, Carnivore, the FBI’s E-mail Surveillance System: Devouring Criminals, Not Privacy , 54 F ED. COMM. L.J. 543, 554 (2002) at 562. 66 See 347 347 U.S. 128, 132, 317 (1954) (internal citation omitted).
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CMS to advance ulterior purposes. 67 Information collected surreptitiously can be used to blackmail or discredit opponents by revealing embarrassing secrets. Indian political history furnishes numerous examples of this phenomenon.68Officials, in particular political positions, have been tempted to serve their own goals. When there is too much intelligence in the hands of the Executive, it can also hide its failures easily. This would ultimately defeat the whole objective of protecting public interest for which the CMS is designed. Deterring such behavior by Executive branch agents is a critical component of our constitutional system and to ensure this, it is necessary to put restraints on the Executive branch and keep the CMS insulated from unnecessary Executive interference. Placing it under the exclusive control of the President of India, or the Prime Minister’s Office, or the Research and Analysis Wing are some of the options. The CMS should be allowed to carry out surveillance and arrive at its findings purely on the basis and strength of the facts it collects and by going dispassionately into the merits and demerits of those facts. Proper and routine disclosures about its activities through formal notifications, hearings, briefings, written submissions and testimonies have to be made to both houses of the Parliament. An appropriate judicial authority also needs to be b e set up for the purpose of scrutiny over the Executive’s purported violations of the privilege held by the CMS. Judicial oversight however need not mandate that law enforcement officers must conform to the requirements under the traditional system of warrants. It could rather be a simple system of regular reporting and auditing. This is because surveillance practices in an electronic police state, aim to shift from operations targeted at individual suspected persons to operations which do not identify targets at the very onset but focus on interpreting behavior patterns based on data and information. Alternatively, courts may strengthen judicial review by reconsidering or amending the existing jurisprudence on privacy to recognise e-mail, social networking technologies and advanced mobile communication technologies as sui generis rather than relying on imperfect analogies to older technologies. Post-acquisition minimisation procedures need to be designed to limit the powers of the Executive branch officials to only those materials that fall 67 Terry 68
Moe, Politics and the Theory of Organisation , 7 J.L. ECON. & ORG. 106, 124-25 (1991). See, Saikat See, Saikat Dutta, We, The Eavesdropped , OUTLOOK , May 3, 2010.
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legitimately within their purview. Minimisation would mean destruction of inadvertently acquired communications of citizens at the earliest practicable point, if it does not contain foreign intelligence information or evidence of a crime or matters of serious national interests. All such material acquired must be destroyed, say within five years, and for Internet transactions, say within two years, from the expiration date of collection. Lastly, the CMS and its officials should be made subject to another layer of monitoring. Their activities need to be regularly monitored through another computerised surveillance system to check for tendencies of agents to overreach or to leak information for malicious purposes. The operations of this second layer of monitoring may follow that of a corporate internal audit committee. The second layer may also be composed of non-agency personnel and this second layer can be privy to confidential surveillance to assure compliance with existing privacy protections.
V.
CONCLUSION
The government's most important technique of control is no longer merely watching or threatening to watch individuals. It is actively analysing and drawing connections between data. Much surveillance occurs without any knowledge that one is watched. Data mining technologies can record perfectly innocent behavior that no one is particularly ashamed of and draw surprisingly powerful inferences about people's behavior, beliefs, and attitudes. Over time, these tools will only become more precise and effective. Thus the problem today is not that fear of surveillance will lead individuals to docile conformity, but that even the most innocent and seemingly unimportant behaviors can increase knowledge about both the individual and others connected to him. Individual behavior may tell things about individuals that they may not even know about themselves in the first place. In addition, knowledge about some individuals can generate knowledge about others who are not being directly watched. Individuals can no longer lo nger protect themselves simply by preventing the government from watching them, for the government may no longer need to watch just them to gain knowledge about them. For many individuals, such extra-ordinary methods of surveillance pose a significant risk to privacy and, under an extremist view, represent a first step towards an Orwellian police state. However, as the author in this article shows, such extremist rhetoric exaggerates the threat of surveillance, especially, in an 119
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increasingly digital world, where individuals are no longer armed with appropriate tools to construct their personal privacy barriers. Besides, for five decades, the Supreme Court seems to have allowed itself to be guided by crime control, public interest, and security concerns which has resulted in an abstract body of jurisprudence that is unwilling to fortify and protect individual privacy against government invasions. This makes the invocation of privacy rights a difficult exercise even in very sensitive cases. Lastly, even though security concerns justify the need for surveillance systems in a country like India, surveillance has also begun to offer a wide range of economic and social benefits by aiding in large-scale welfare programs. This further strengthens the case for deploying mass surveillance to better manage the day-to-day activities of the government. Thus, surveillance will become a permanent feature of governance, in a manner that will be as ubiquitous in time as the familiar devices of the regulatory and welfare states, and consequently gain greater acceptance in law. However at the same time, it is important to ensure that the wisdom of judiciary is not blinded by advances and marvels of technology alone alo ne but it must consistently maintain the delicate balance between ensuring better law and order systems and securing the contours of personal liberty that are embedded in the Constitution.
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ESTABLISHING THE JURISPRUDENCE AND CONTEMPORANEOUS RELEVANCE OF INSTANT CUSTOMARY INTERNATIONAL LAW
Sarthak Malhotra * and Sujoy Sur ** Customary International Law has been and is one of the foremost sources of international law. However, in a world where time and systemisation are of utmost importance, traditional Customary International Law, at times, comes across as rather rigid and unmethodical in establishing and espousing binding customary rules. The solution to this difficulty has been achieved in the form of Instant Customary Law, where a much greater emphasis is placed on the legal intent or the subjective element of opinio juris rather than consistent state practice. Instant Customary Law claims that the legal intent of a state accompanied by a minimum amount of state practice in accordance with the legal intent is sufficient to establish a customary rule which binds the state. This emerging concept of instant custom in international law has gripped the attention of many and as a result, much literature has been devoted to outlining its contours and understanding its underlying jurisprudence. An important factor contributing to the increased recognition of Instant Customary Law is its ability to address the shortcomings and inadequacies of traditional Customary Law. After establishing the jurisprudence of Instant Customary Law, this article delves into the practical aspect of Instant Customary Law, by taking some contemporaneous instances which further substantiate its relevance and its efficiency as a source of law in modern times. In that stride, the article will discuss, inter alia, – the legally binding effect of UN resolutions in light of the ‘Bush Doctrine’, stance taken by the international community towards Libya with respect to the recent Arab Spring revolution and how the new age web-based social platforms have become an integral medium to discern the legal intent, i.e. opinio juris of states. Finally, this article will strive to establish how the jurisprudence of Instant Customary Law is congruous with the present day scenario and needs to be acknowledged and understood by the international community at large.
I.
INTRODUCING INTRODUCING THE LEGALITY OF CUSTOMS
Customs have played a principle role in the development of legal systems around the globe. The traditionalistic temper, which customs usually * **
IInd Year, B. Com. LL. B, Gujarat National Law University, Gandhinagar. IInd Year, B.A. LL. B, Gujarat National Law University, Gandhinagar.
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emanate, have given them a primordial but persuasive hold over our legal rules and regulations. 1 Customs are usually practices in the early stages of legal developments, more often than not unwritten and uncodified; their survival ultimately protracted because of what can be called an aura of historical legitimacy.2 The gravity of customs as laws in most of national legal systems has gradually diminished over the past couple of decades3 with the codification of laws, modernisation of legal machinery and the presence of strong legislature. This however, has not been the case with international law. Customs in international law still carry a lot of weight and precedence in governing the affairs between States, primarily because international law is still burgeoning and lacks any centralised institution to which all the States conform and accede to. Secondarily, the body of written norms alone cannot serve as a basis for a coherent legal order with the consequence that the lacuna must be filled by unwritten rules and principles i.e. customs. 4 Customary International Law can be said to be broadly incorporated of two elements: patterns of state practice or behaviour and patterns of a psychological belief that such behaviour is ‘law’ which is termed as ‘ opinio juris sive necessitatis’.5 Although Article 38(1)(b)6 of the Statute of the International Court of Justice (ICJ Statute) defines custom as an ‘evidence of a general practice accepted as law’, there is no concurrence on how to elucidate the two elements of this definition. 7 In this paper, the authors will attempt only to clear the misconceptions surrounding the former of the two elements in the above definition, while acknowledging that the latter element is also not free of 1
M.N. SHAW , INTERNATIONAL L AW , (Cambridge University Press, 2003). See generally generally M.N. See e.g. R. M. UNGER , L AW IN MODERN SOCIETY : TOWARDS A CRITICISM OF SOCIAL THEORY , 49 (New York: Free Press, 1976), who notes that customary law can be regarded as ‘any recurring mode of interaction among individuals and groups together with the more or less explicit acknowledgement by these groups and individuals that such patterns of interaction produce reciprocal expectations of conduct that ought to be satisfied’; See also R. DIAS, JURISPRUDENCE, ch 9, London, (5th ed. 1985), and H. L. A. HART, THE CONCEPT OF L AW , Oxford (1961). 3 See H. ETHINKING THE SOURCES OF INTERNATIONAL L AW H. V AN HOOF, R ETHINKING , 114 (1983). 4 Petersen, infra note note 7. 5 Opinio juris sive necessitatis was first formulated by the French writer Francois Geny to differentiate between legal custom and mere social usage. See generally François François Gény Méthode d’Interprétation et Sources en Droit Privé Positif , ¶ 110 (1889). 6 United Nations, Statute of the International Court Of Justice, June 26, 1945, art. 38(1)(b). 7 N. Petersen. Customary Law without Custom-Rules, Principles, and the Role of State Practice in EV . 275 ( 2007). International Norm Creation, 23 AM. U. INT'L L. R EV 2
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incongruity. The issue of general state practice principally deals with the leitmotifs of what kind of activities constitute state practice and the legality of those state actions in light of the psychological element of International Customary Law i.e. opinio juris , the issue which this paper specifically focuses on. The principle requirement of state practice is that it should be prolonged over a period of time and recurring to get a legal attestation from the international community. State practice being an objective element was concentrated upon by courts and was used to ascertain the behavioural patterns of states, thus, inductively determining the customary arrangement between States. 8 However, in the Nicaragua case9 the ICJ initially defined customary law constituting both state practice and opinio juris , but on a subsequent analysis of facts the ICJ relied and concentrated only on the element of opinio juris without without directing any analysis of state conduct. 10 The Court in principle upheld the twopronged approach, while arguably in substance it only relied on the element of opinio juris . 11 What can thus be safely concluded is that the element of psychological intent of the state may hold precedence over actual state practice especially in circumstances where sufficient instances of putting that intent into practice have not been afforded to a state. Waiting for such instances to first occur and for the state to then apply its ‘belief’ of a ‘custom’ to such instances, so that it may develop into a concrete practice and can be upheld as a proof of a binding custom, is what makes the traditional International Customary Law a particularly long and tedious process. Moreover, jurists and scholars have often debated and concurred on the kind of activities which envisage state practice but the issue of duration of that state practice and its recurrence has been an area of constant gainsaying and disagreements. In the North Sea Continental Shelf cases ICJ pronounced that merely a passage of a short period of time will not necessarily be a bar to the formation of a new customary law, it is just that the state practice must be in recognition to the rule of law involved. 12 In general, the time element is 8
B. SIMMA, International Human Rights and General International Law: A Comparative Analysis , in THE PROTECTION OF HUMAN R IGHTS IGHTS IN EUROPE , IV COLLECTED COURSES OF THE ACADEMY OF EUROPEAN L AW , 153, 216 (Vol. 2 1993). 9 Infra note 68. 10 Id.; note 7. Id.; Supra note 11 Infra note note 13. 12 The North Sea Continental Contin ental Shelf Cases (Federal Republic Republi c of Germany v. Denmark; Federal Republic of Germany v. Netherlands), ICJ Reports, Feb 20, 1969, 3, 29, 41, 43, 72 ILR (1969).
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considered to be dependent upon the ‘circumstance of the case and the nature of usage in question’ and has not been conclusively settled, thus, providing scope for incertitude and deliberations.13 With the development and branching of law in fields which are evolving at a fast pace, the element of time has come into question, not only because time is of great essence in modern times but also because there is no duration of state practice specified in the international legal framework. This has given the scope for a wider interpretation, possible under the opinio juris element, element, thus, prevailing in magnitude over the element of state practice to give us an ‘Instant’ Customary International Law. The term Instant Customary Customary International Law in itself is not new but its piecemeal use by the international community over the years in contemporary matters of international law is making it gradually grow in importance. In light of the contemporary phenomenon of social media and trend setting practices by some states, the increasing importance of Instant Customary Law, which some believe is a paradoxical doctrine in itself as it over-rides the very focal point around which a custom revolves - time, will now be examined and reflected upon.
II. ESTABLISHING THE JURISPRUDENCE OF INSTANT CUSTOMARY INTERNATIONAL LAW The concept of custom offers an appealing sense of simplicity. Yet, upon closer analysis, it almost mystically transforms into a perplexingly complex theoretical dilemma. The dilemma is reflected in the ‘traditional’ view of custom formation.14 This dilemma is because of the requirement of prolonged state practice along with a ‘belief’ in that state practice by a rule of international law. The dilemma intensifies when these requirements are insisted upon for formulation of something as foundational as rule of law. 15 Instant Customary Law, as it will be seen further, is free of any such uncertain ‘practice over time developing into belief’ loops, as it mainly relies on the legal element of opinio juris. The practice of Instant Customary International Law, although, considered a ‘modernist’ approach finds its roots in the mid nineteenth century, as old as the concept of International Law itself. 13
Supra note note 1, at 76. EV . 603 (1990). Slama, Opinio juris in Customary International Law , 15 OKLA. CITY UL R EV Id.
14 J.L. 15
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It was in 1840 that Puchta and Savigny put forth the view that custom was “merely the immediate and spontaneous spontaneous revelation of the common popular 16 sentiment”. They were the first to instigate the line of thinking, which focused more on the subjective element of state practice instead of the state practice itself i.e. the ‘psychological’ ‘psychological’ element of opinio juris . Prior to this, a majority of the theories reiterated that material usage forms the basis of custom. Puchta and Savigny contended the formation of custom on the basis of this ‘psychological’ element only. They argued, “If 'law' is the expression of popular consciousness or will, then the overt or tangible aspect of custom dwindles in relevance and importance. So long as we can discover the popular sentiment, what need is there for an overt act or ‘precedent’?” ‘precedent’?”17 Further, it was Bin Cheng in 1968 who is formally accredited to have introduced the concept of ‘Instant’ Customary International Law. 18 Bin Cheng argued that it is only opinio juris which is necessary to constitute a binding customary law. Practice does not have any constitutive role to play in the establishment of customary law; rather it has only an evidentiary function to play.19 In Bin Cheng’s opinion, the U.N. Resolutions on Outer Space, 20 which had been adopted unanimously, constituted Instant Customary Law and required no further proof of state practice. Bin Cheng laid complete emphasis on the psychological element of opinio juris considering considering it to be more logical and discernible. The traditionalist view, however, established itself as ‘word of law’, especially after Article 38(1)(b) of ICJ Statute was interpreted as the re-iteration of the two traditionalist elements of opinio juris and state practice. Professor Anthony D’Amato gave a digressive view in 197121, criticising the traditional view as being “over complicated”. complicated”. Traditionally, practice was a determining constituent element in understanding and deriving customary international law, as the courts had to objectively concentrate on the state practice and induce the ANTHONY D’AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL L AW , Ithaca, 274, 11 (NY and London Cornell University Press, 1971). 17 Id. 18 Bin Cheng, United Nations Resolutions on Outer Space: ‘Instant’ International Customary Law? 5 INDIAN J. INT’L L. 23 (1965). 19 B. Simma & P. Alston, Sources of Human Rights Law: Custom, Jus Cogens, and General Principles , 12 AUST. YBIL. 82 (1988). (1988) . 20 See G.A. Res. 1721, U.N. GAOR, 16th Sess., Supp. No. 17, U.N. Doc. A/5100 (Dec. 20, 1961); G.A. Res. 1962, U.N. GAOR, 18th Sess., Supp. No. 15, U.N. Doc.A/5515 (Dec. 13, 1963). 21 Id. 16
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law by collecting and systematising facts of state conduct. He criticised the traditionalist view by arguing against the most palpable conundrum present in its line of thinking, that of the indefinable repetitions of a usage to generate a legal obligation, declaring it as inconsistent and muddled. Instead, he reformulated the concept of determining customs into simpler and discernible elements of “articulation” and “act”. 22 Professor D’Amato’s theory suggests that extension of existing articulation theory that allows states’ articulations to anticipate the element of practice, thus letting international state actors signal how they might wish the norm to develop before any specific incidence of conflict occurs. 23 States fulfill the articulation component by making ‘announcements’ of their intentions: announcements that they may make through formal unilateral statements as well as through bilateral or multilateral informal understandings.24 The States then act upon the articulations, which are based upon evidentiary motivations, so pronounced in a significant and real way, thus, substantiating the articulation. Therefore, once the act occurs, the previously articulated rule or pronouncement takes a life of its own and manifests itself into a rule of law capable of being cited as a custom in similar instances arising in future. 25 A state, therefore, at the bare minimum, can cite one instance of an act following the articulation to proclaim it as a customary international law. D’Amato, thus, set the precedent for the claim-oriented approach26, but it certainly gave a much more systemised and uniform method of recognition of international customary rules as compared to the traditional view which D’Amato himself pilloried as “mystical jumps from non-law to law according to the number of repetitions”. 27 Bin Cheng further espoused this approach by contending that the animus , the psychological element, has been of cardinal influence in many cases
Id. V. Fon & F. Parisi, International Customary Law and Articulation Theories: An Economic Analysis , INT’L L. & MGMT. R., 202-203 (2006). 24 Id. 25 B. Langille, It's Instant Custom: How the Bush Doctrine became Law after the Terrorist Attacks of EV . 145 (2003). September 11, 2001, 2001, 26 BC INT'L & COMP. L. R EV 26 Id. 27 Niels, Supra note 7; Anthony D’Amato was very vocal for a change in the International Customary Law Scene, making him denounce the traditional view as self-contradictory and incoherent. Besides vouching for the articulation approach, he also talked about special customs (see The Concept of Special Customs in International Law ) existing between states as opposed to the “general principles” as generalised in the Statute of ICJ, art. 38(1)(b). 22 23
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of the Permanent Court of International Justice 28 and International Court of Justice29. Cheng, by psychological element, did not intend to mean so much the mental process or inner motivation of a State when it performs or abstains from acts,30 he meant rather the acceptance or recognition of, or acquiescence to, the binding character of the rule in question implied in a State’s action or omission, or in other words, it being a rule of general law binding on all. 31 Cheng further argued that the role of usage in the establishment of rules in international law hold a purely evidentiary function and by no means is it necessary that the usage should be prolonged or should be consistent “state practice” as such, provided that the element of opinio juris can be clearly established. In international law the states are their own lawmakers, 32 therefore, logically the binding force of rules and regulations of international law rests with the consent or acquiescence of the state. If states consider themselves bound by an internationally accepted rule of law or a rule between two states then it should be treated as opinio juris , as long as the rule does not infringe the right of third states not sharing the same opinio juris . Here, Cheng focuses on the aspect of local customary law, a customary law existing between two states. Professor D’Amato has also deliberated on this issue, which is a divergence from the general principles of international customary law – a special customary law between two states. 33 Cheng’s proposition of an Instant Customary Law is also re-iterated in Professor Stein’s conclusion that opinio juris is no longer seen as a consciousness that matures slowly over time, but instead as a conviction that instantaneously attaches to a rule believed to be socially necessary or desirable.34 It is this desirability that we will focus our attention upon. The tumultuous process of the establishment of a legally binding custom over decades seems to be an incongruous concept in recent times where immediacy 28
E.g. The case of the S.S. Lotus (France v. Turkey), [1927] P.C.I.J., ser. A, No. 10, at 28. E.g., Asylum Case (Columbia v. Peru), [1950] ICJ Rep. 266 at 266, 276; Right of Passage Case (Portugal v. India), [1960] ICJ Rep. 6, at 42-43. 30 P. Guggenheim, Contribution å l’histoire des sources du droit des gens , 94 R ECUEIL ECUEIL DES COURS (1958). 31 Cheng, Supra note 25. 32 S.S. Lotus (France v. Turkey), [1927] P.C.I.J., ser. A, No. 10, at 18: ‘The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law...’. 33 D'Amato, The Concept Of Special Custom In International Law, 63 A 63 AM. J INT’L. 211 (1969). 34 T. L. Stein, Approach of the Different Drummer: The Principle of the t he Persistent Objector in International Law , 26 H ARV . INT'L. LJ 457 (1985). 29
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of legal sanctions and modish state actions are needed, in a world which is nimbly recasting and where new concepts require advanced norms to govern themselves. With the formation of so many international organisations, the process of custom creation has been facilitated and hastened to a great extent. For example- the UN provides a forum for the states to exchange and harmonise their views to arrive at some form of compromise. 35 Space, social media, human rights are some of the numerous concepts which have gained significant force in global laws and cannot be contained by the rigidity of legal philosophy of the older days. Professor Sohn following on the lines of Professor Jennings36 noted that, “…The methods of developing new rules of customary international law have greatly changed since the Second World War. These changes have not been imposed on states by any external authority; they are the result of a voluntary acceptance by states of the need to adapt the methods of law-creation to the needs of the rapidly growing and changing world community. Any prior restrictions on the law-creating process were self-made, and they can be changed by the very method that established them in the first place. The rules contained in Article 38 of the Statute of the International Court of Justice were appropriate at the time of their adoption, and they are flexible enough to allow new ways of ascertainment of the existence of a rule of customary international law.” 37 The pertinent question under consideration, therefore, should be that what kind of acceptance and regulations can be constituted to have a legally binding effect on the states. We will mainly focus upon the declarations of bodies of universal legal importance and laws endorsed by some states, which have been participative in treaty making pertaining to the area concerned, or which can be said to be “superpowers” “superpowers” in their respective areas.38 35
ANTONIO C ASSESE , INTERNATIONAL L AW , Oxford, (Oxford University Press, 2005). 36 R. Y. R. Y. J JENNINGS, The Identification of International Law , in INTERNATIONAL L AW : TEACHING AND PRACTICE 8 (1982). 37 Louis B. Sohn, Generally Accepted International Rules, 61 W EV . 1073, 1079 (1986). 61 W ASH. L. R EV Evolving methods of developing new rules of customary inter- national law are the result of the need to "adapt the methods of law-creation to the needs of the rapidly growing and changing world community”. 38 Cheng, Supra note 25. Bin Cheng in his paper gave admittance of many delegates who believed that in certain cases the countries which have a sort of monopolistic control in particular spheres, those countries should assent to the declaration, otherwise it ceases to
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Since the inception of the United Nations as a stable international body and the International Court of Justice as the insurmountable apex judicial world organ, the legal effect of declarations, resolutions, international cases and treaty making has gained a strong binding force. Resolutions of states can only be considered to have a binding effect if they are able to establish the opinio juris and substantiate it with an evidence of realising the rule in practice. Considering the legal standing which the UN has in the present scheme of things, it will be convenient to take as a starting point, the relationship of General Assembly Declarations with customary law.39 Resolutions of the General Assembly may constitute state practice; they may originate state practice; corroborate customary law; and they may supply opinio juris in in some cases.40 As has been mentioned, earlier the transition from custom to law was fundamentally inductive; the approach now has evolved into a deductive one. 41 Rules, declarations, for instance, by the General Assembly, and the surrounding ritual itself, are taken as the genesis for the possible development of customary law in the event that state practice ultimately happens to lock on these proclamations, as well as a law making process which is self-sufficient and complete in itself; even in the face of contrasting ‘external’ facts. 42 The dominance of retrospection has taken a back seat here, whereas, immediacy and urgent necessity, in the form of lawful consent of the state (opinio juris), has come to the fore. Turning from United Nations to academic circles, Lung-Chu Chen, an internationally recognised scholar and professor of international law at New York Law School43, in his evaluation of the new Restatement's provisions on the carry a binding effect and becomes a dismissive document. An example of this would be Space Law during the 1960’s. Absence of USA and USSR in any multi-lateral treaty or resolution with respect to Air or Space Law would not be considered to have a binding or directive effect simply because of the pre-potency of these two countries in practically every aspect in the areas of Air and Space Law. 39 O.Y. ASAMOAH, THE LEGAL SIGNIFICANCE OF THE DECLARATION OF THE GENERAL ASSEMBLY OF THE UNITED N ATIONS , (The Hague: Martinus Nijhoff Publishers, 1966). 40 There are at least two other possible grounds on which it might be claimed that United Nations resolutions and declarations are “lawmaking”, namely as authoritative interpretation of the charter (Asamoah, op. cit.) and as statements of “general principles of law” as in Article 38(i)(c) 38( i)(c) of the th e I.C.J. Statute. 41 Simma and Phillip, Phillip, supra note note 26. 42 Id. 43 Professor Lung-Chu Chen, J.S.D (Yale), L.L.M (Northwestern). Professor Chen is an authority on International Law, Humanitarian Law and U.S. C onstitutional Law. He has been the former advisor to the President of Taiwan.
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protection of persons, considers quite categorically that the Universal Declaration's “frequent invocation and application by officials, at all levels of government and in many communities around the world” have conferred on it “those expectations characteristic of customary international law”. 44 Therefore, putting forth the concept jurisprudentially jurisprudentially in present times, we can surmise that Instant Customary International Law is a system of enforceable, binding and sanctionable source of law, branching out of the most legally compelling source in the International arena i.e. Customary Law. This system of Instant Custom revamps the concept of customary law by focusing and re-iterating on the importance of the subjective aspect of opinio juris and sidelining the objective element of prolonged state practice over many years for its tardiness. The legal validity that it derives is from the active or passive consent of the states. Therefore, once a state ratifies or acts upon its agreed part, it ‘instantly’ acquires the character of a custom as it re-enforces the psychology of the state that it has put into practice.
III.
CONTEMPORANEITY OF INSTANT CUSTOMARY LAW
A. UNDERSTANDING THE LEGAL EFFECT EFFECT OF RESOLUTIONS RESOLUTIONS To deal with a range of internationally relevant subjects ranging from environment to terrorism, states have frequently engaged in multi-lateral treaties and protocols and resorted to UN Declarations. Additionally, the growing prominence of International Customary Law can be understood from its application in the field field of International International Humanitarian Law. Law. In this context, especially in light of the international proceedings in the past one and a half decades, a discussion on the Bush Doctrine becomes vital. The Bush Doctrine was adopted in response to the terrorist attacks of 9/11. It became an instant custom within weeks as states began acting in accordance with the rule first articulated by President Bush, in his address to the nation on 11th September 2001 and subsequently by the U.N. General Assembly and the Security Council, on 12 th September 2001, which were unanimously 44 L.C.
Chen, Restatement: Protection of Persons , 14 Yale JIL 546-547 (1989); See also, M CDOUGAL, IGHTS AND W ORLD ORLD PUBLIC ORDER , 273-274, 325-327 (Yale L ASSWELL & CHEN, HUMAN R IGHTS University Press, 1980). For a recent Soviet voice to this effect see V.E. Kartashkin, The Universal Declaration and Human Rights in the Contemporary World, 39 Soviet YBIL (1988).
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adopted.45 These two instances provided the required articulation of the opinio juris of of the states in following the rule and abiding by the resolution. The states further complied with the procedures and activities of the US administration, thus putting their intent into practice and binding themselves as they normally would in case of a custom. This immediate compliance further underlines the legal intent of the states in carrying out the action and reduces the need to carry out the action repetitively over a prolonged period for the custom to have some force. Importantly, such compliance and actions at an international stage are taken to be as requisite state actions by which a state can be held bound. 46 An example of this is Britain’s active participation in the military operations undertaken by the US administration in Afghanistan, weeks after the resolution and the doctrine.47 The terrorist attacks of 11th September 2001 acted as a springboard for the creation of many international agreements on counter-terrorism. A number of laws were formulated and multilateral treaties and U.N. resolutions were either expressly or tacitly adopted by the nation states on various sub-issues ranging from suppression of nuclear terrorism 48 , implementation of antiterrorist conventions49, and condemnation of terrorist activities.50 Such rapid and progressive development of binding international rules, which in this case were, originally established by one state and subsequently accepted and adopted by other countries, is a classic example of Customary Law going instant and crossing the barrier of time and tradition. To delve a little deeper into the legal implications and repercussions of the states’ adoption of international resolutions, it is important to iterate here the theory put forth by Marko Divac Öberg to assess the legal effects of resolutions and treaties. Under this theory, there are three basic types of legal effects.51 A resolution may have the legal effect of (i) creating obligations, rights 45
Id.
46
A. PELLET, Article 38 , in ZIMMERMAN , OELLERS-FRAHM & CHOUMUSCHAT , THE INTERNATIONAL COURT OF JUSTICE - A COMMENTARY 751 (London: Oxford University Press, 2006); See also, Congo v. Belgium. [2002] ICJ Rep. 3, 23-24. Blair is the ‘USA’s Best Secretary of State’ , BBC Worldwide Monitoring, (Oct. 16, 2001), available LEXIS, News Group File. at LEXIS, International Convention for the Suppression of Acts of Nuclear Terrorism New York, April 13, 2005. 1373 U.N. SCOR, (4385th mtg.), U.N. Doc. S/RES/1373 (2001). 1368 U.N. SCOR, (4370th mtg.) U.N. Doc. S/RES/1368 (2001). D. Divac Öberg, The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ 16 EUR . J. OF INT’L. L. 881, 879-906 (2006). The word effect simply
47 48 49 50 51
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and/or powers (which we shall call ‘substantive effects’)52and/or (ii) making e.g. that an alleged fact is true) or legal situations ( e.g. e.g. determinations53 of facts ( e.g. that an obligation was violated), which trigger the substantive effects (‘causative effect’). To this is added (iii) how and when the substantive effects operate (‘modal effects’).54 Sometimes, there only exists a mirage in the name of legal effects. This is the case when a resolution simply restates an obligation, a right or a power that already exists.55 Declarations in principle only interpret or restate the law and have no legal effect; and a resolution which merely interprets the Charter does not, in theory, have any legal effect of its own. 56 To the extent that a resolution details and substantially adds to the Charter, any ensuing legal effect does not come from the resolution of a given organ per se but but from the fact that it may be considered generally acceptable by UN Members.57 This acceptance of the resolution in letter and spirit is the opinio juris of states. In the event of deficiency of legal effects, the same can be obliterated if there is a strong and substantiated psychological ‘intent’ present in the states accompanied or followed by an act which is in accordance with their intent.58 The vigorousness of the intent is more often than not ‘automatically’ developed or already present when times of urgency prevail.59 Thus as an example, any state which supports a state having an interest contrary to that of the general international community and/or the supra-national bodies such as United Nations, whether directly or indirectly through the use of media, political statements, similar resources etc., is said to be bound by an instant custom and can be considered to oppose the
means consequence. The legal effect should be distinguished from any moral, political, or other effects which do not fall within the scope of this article. 52 Combacau, ‘L’écoulement du temps’ Sociétéfrançaisein pour le droit international, 77 LE DROIT INTERNATIONAL E T LE TEMPS, ¶ 21–22, 98–100 (2011). 53 Öberg, supra note 55. 54 Id . 55 56
Id. Id.
Report of Committee IV/2 of the UNCIO, San Francisco, 12 June 1945, UNCIO Doc 933, IV/2/42(2), at 7; 13 UNCIO Docs 709, at 709–710. 58 Cheng, supra note note 25; Sohn, supra note 38; See also, D’Amato, supra note 16. 59 Bush Doctrine in itself is an example of it; Grotian Moment can be an example of it. The term Grotian moment signifies a legal development that is so significant that it can create new customary international law or radically transform the interpretation of treaty-based law. Grotian Moment - The International War Crimes Trial Blog , School of Law, Case Western Reserve University, (July 29, 2012) available at http://law.case.edu/grotian-moment-blog/ 57
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general international considerations even though such support or practice might have been for a very short period of time. While celebrating the boons of Instant Customary Law, it must also be kept in mind that it is severely criticised for not having as staunch a binding force as the traditional customary law. Though it hasn’t been expressly overruled by the international fraternity, it also doesn’t command wide-spread and uniform concurrence. However, keeping in mind that it is still an emerging concept of international law, what is sought to be propounded in this article is that nation states are gradually showing a willingness to consider this as an alternate method of source establishment in modern times of rapid reaction. B. TAKING LIBYA AS A CONTEMPORARY CASE STUDY Applying Instant Customary Law in the case of Libya which was subjected to large scale international intervention during its civil civil war, we can can say that NATO’s alignment with the Benghazi rebels (and National Transition Council) was illegal60, inter alia , according to the seminal case of Nicaragua v. United States of America.61 In this case, the ICJ held that the ‘United States of America, by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted against the Republic of Nicaragua in breach of its obligation under customary international international law not to intervene in the affairs of another State’.62 Further, general intervention is proscribed both by Article 2(7) of the UN Charter and provisions of the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation between States, both of which NATO states are party to. 63 But an accommodating exceptional view was also mentioned in the same case with the ICJ stipulating that ‘reliance by a state on a novel right or an unprecedented exception to the principle [such as humanitarian intervention] might, if shared 60 R.
Pelekanos, Customary International Law and the Scramble For Libya (Dec 16, 2011), available at http://crisisproject.org/customary-international-law-and-the-scramble-for-libya. 61 Military and Paramilitary Activities Activiti es In and Against Nicaragua (Nicaragua v. United States of America) [1984] [19 84] I.C.J. Reports 392. 62 The principle of non-intervention is also supported by UNSC Resolution 2131 (XX) 1965, containing the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and augmented by Resolutions 31/91 of 14 December 1976, 32/153 of 19 December 1977, 33/74 of 15 December 1978, 34/101 of 14 December 1979 and 35/159 of 12 December 1980 on non-interference in the internal affairs of states. 63 Military and Paramilitary Activities Activiti es In and Against Nicaragua (Nicaragua v. United States of America), [1984] [198 4] I.C.J. Reports.
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in principle by other states, tend towards a modification of customary international law’.64 The resolution which allowed this alignment (S/RES/1976) was not vetoed and was entertained by the BRIC Group and Germany with acquiescence. In the context of international law, neutrality of this nature is interpreted as a passive form of consent. 65 The ICJ had further proclaimed that if states in coalition develop a legal intent and act upon it, then, to go against the norms of non-intervention could be taken as an exception and a new rule in itself. This can be argued to be an Instant Customary Law formation, a development of legitimate expectation by the international community over a short period of time. time. Such intervention intervention with states acceding acceding to it can be said to be customary law in itself, developed out of the ‘Right to Protect’ 66 mechanism and giving scope for states in general to act along these lines in similar cases as that of Libya here. Therefore, this can be taken as a very relevant contemporary case of the reinforced recognition of the jurisprudence which Instant Customary International Law espouses and also a case highlighting the need for the international community to adapt to this new method of custom formation which binds states. states. A word of caution caution however must must be added here. here. It is neither argued, nor should the ICJ judgment be interpreted to mean, that any and every legal intent rapidly formed under exceptional circumstances would set a correct precedent. Especially in light of developments as they unfolded in Libya, after NATO’s interventions, an instantly formed opinio juris may not ultimately develop as a custom if the action taken on its behest cannot stand legal scrutiny or is immoral or unethical. C. EMERGENCE AND ADMISSIBILITY ADMISSIBILITY OF SOCIAL SOCIAL MEDIA MEDIA AS ‘INSTANT’ CUSTOM The increasing access to the internet has given rise to a culture where the public not only acts as a consumer but also acts as a contributor or producer.67 It leads to the formation of a participatory environment environment whose main components are civic engagement and creative expression. In a nutshell, 64 65
Id. See generally Shaw, Shaw, supra note note 1, at 80-82.
66 R2P
67
– Right to protect mechanism was introduced by the 2005 World Summit and that formed the normative framework of S/RES/1976 that authorised NATO’s intervention in the Maghreb. JENKINS, CONFRONTING THE CHALLENGES OF PARTICIPATORY CULTURE: MEDIA EDUCATION FOR THE 21ST CENTURY , (The MIT Press, 2009).
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“Young people creatively respond to a plethora of electronic signals and cultural commodities in ways that surprise their makers, finding meanings and identities never meant to be there and defying simple nostrums that bewail the manipulation or passivity of ‘consumers’.” ‘consumers’.”68 Social media has become an evidentiary gold mine and has been recognised as a valid form of evidence in a plethora of cases relating to privacy, contract, trademarks, copyright issues 69 , etc. Recently, the electronic social media has been considered as strong evidence particularly in relation to highlighting the psychology of a state through its state actors. Evidentiary sources existing in the form of social media can also be termed as ‘Instant Customary Law’ which may be understood as valid rules which develop without undergoing a long period of gestation. International Humanitarian Law 70, which is a prime benefactor of the jurisprudence emerging out of Instant Customary International Law, has been actively using electronic social media and eevidences as evidences in the court. The recognition by the international community of social media as a valid source of evidence evidence can be seen in the light light of numerous international international cases where social media was accepted as evidence. However, lack of authoritative literature on this topic proves to be an impediment in understanding this particular application of Instant Customary Law. Social Media, by providing ‘on ground’ witness accounts, reduces the dependence on traditional sources such as testimonies. It has also expanded access to information. The role of social media in Arab Spring is well known. 71 It has expanded access to evidence of human rights abuses beyond mainstream evidences. “Technology has allowed us to see into many parts of the world that were previously shrouded by oppressive governments or geographical P. Willis, Foot Soldiers of Modernity: The Dialectics of Cultural Consumption and the 21st-Century EV . 390-415 (2003). School, 73 H ARVARD EDUCA. R EV 69 The enactment of Digital Millennium Copyright Act (DMCA) and DMCA Title II, the Online Copyright Infringement Liability Act (OCILLA) and the efforts made by the Congress in USA for passing the Stop Online Piracy Act (SOPA) in the House and its Senate companion bill, the Protect IP Act (PIPA) go a long way in strengthening the opinio juris of the states for the evidentiary value of Social Media. 70 International humanitarian humanita rian law is a set of rules which seek to limit the effects of armed conflict because of humanitarian reasons. International humanitarian law is also known as the law of war or the law of armed conflict. What is International Humanitarian Law? ICRC ICRC (July, 2004) available at http://www.icrc.org/eng http://www.icrc.org/eng /assets/files/other/what_is_ihl.pdf [Last Accessed on 10 March 2014]. 71 D. Tapscott, Social Media Can Help Build Governments Too, Huffington Post, May 23, 2011. 68
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boundaries.”72 In fact, digital technologies and mobile devices have become the primary sources of documentation. They have also helped in revolutionising political conflict and documenting it. For the purpose of admissibility, electronic evidence falls under the category of ‘documentary evidence, defined by tribunals as anything in which information of any kind has been recorded. 73 The opinio juris, for accepting admissibility of evidence emanating from social media, can thus be found in the various pieces of legislations enacted by countries around the world. The rules pertaining to litigation in England and Wales namely the Civil Procedure Rules include social media within the broad definition of ‘documents’ thereby meaning that electronic documents which include instant messages and content from social networking sites are covered within this definition. In India, evidentiary value of electronic records which includes social media in its ambit is discussed widely under Section 65A and Section 65B 74 of the Indian Evidence Act, 1872. In a recent Quebec court’s decision, the Commission des Lesions Professionnelle has held that posts from the social networking site Facebook are admissible in evidence, based in part on its finding that all Facebook content content is in the public domain. 75 Thus not only a majority of the countries but even international courts and tribunals have recognised social media as a valid source of evidence. The evidentiary value of social media can be appreciated the most in the cases of human rights violations. Social Media has been frequently used to establish the grounds for persecution indictments and to provide a basis for an international investigation. International NGOs like Human Rights Watch and WITNESS have been collecting photos and videos of state-sponsored state-sponsored violence 72 B.
Cole, The Web as a Spotlight: An Alternative Look at Technology in the Arab Spring, Huffington Post, (Apr. 8, 2011), available at http://www.huffingtonpost.com/ben-cole/the-web-asaspotlight-an_b_850679.html 73 Prosecutor v. Karemera, Ngirumpatse and Nzirorera, Decision on the Prosecutor’s Motion for Admission of Certain Exhibits into Evidence, Case No. ICTR-98-44-T, (25 Jan 2008) ¶ 5; The Prosecutor v. Alfred Musema, Judgment and Sentence, Case No. ICTR-96-13-T, (27 IGHTS AND January 2000) ¶ 53; See also O’NEILL, ET AL., R APOPORT CENTRE FOR HUMAN R IGHTS INE IN OLD W INESKINS INESKINS? NEW PROBLEMS IN THE USE OF ELECTRONIC JUSTICE, NEW W INE EVIDENCE IN HUMAN R IGHTS IGHTS INVESTIGATIONS AND PROSECUTIO PROSECUTIONS NS (2011). 74 65A: Special provisions as to evidence relating to electronic record; 65B: The contents of electronic records may be proved in accordance with the provisions of this section. 75 See generally Legal Update, Employment and Labour, Occupational health and safety and workers’ compensation , (August 2011) http://www.nortonrosefulbright.com/files/facebook-content-isheld-to-be-admissible-in-evidence-pdf-83kb-55617.pdf ; R. Hudon, C. Tremblay, N. Aubin March 2009. C.L.P. 412395-62C-1006, 2011 Q CCLP 1802.
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from all over the world. Information created and disseminated via web based technologies (social media) form a considerable part of their evidence. These evidences, though, might only be having persuasive and influential value at present but their increasing recognition as potent evidence cannot be ignored. A famous example of use of electronic evidence is the case of admissibility of Nick Hughes’s video footage in the infamous Rwandan genocide case. In this case, in 1998, Hughes, a British Reporter shot a video of the murder of a father and his daughter and other victims. This footage was admitted as “Exhibit 467” in the trial of George Rutaganda before International Criminal Tribunal for Rwanda who was convicted and sent to Prison in 1998. 76 Photographs have also been used to document human rights abuses since long time. Foremost examples of photographs being taken into documentary account are the photographs of atrocities of the Opium Wars in China, and the famous photograph of Kim Phuc, the Vietnamese child running.77 In the Milutinovic Trial at the International Criminal Tribunal for Yugoslavia (ICTY), the Chamber had admitted the Prosecutor’s submission of footage from the BBC and CNN after considerable perusal of their authenticity. 78 Text messages have also been considered as valid evidence sometimes.79 Another landmark development development in such case is the formation of the platform called Wiki Leaks. This ‘whistleblower site’ posted original classified documents of the government, organisations and corporations online. This also included secret military documents of Afghanistan wars and Iraq wars which were certainly an eye opener for the whole world. The US Government reacted swiftly and sharply to such disclosure which can be seen from the following statement made made by Richard Hass, President President of of Council on Foreign Relations, Relations, United States of America that, “Foreign governments may think twice before sharing their secrets or even their candid judgments with American counterparts counterparts lest they read about them on the Internet; resulting reticence will deprive N. HUGHES, Exhibit 467: Genocide Through a Camera Lens , THE MEDIA AND THE R WANDA GENOCIDE (2007). 77 S. Saywell, Kim's Story, The Road from Vietnam, Canadian Centres for Teaching Peace available at http://www.peace.ca/kimstory.htm [Last Accessed on 27 July 2013]. 78 Prosecutor v. Milutinovic et al ., ., Decision on Prosecution Motion to Admit Documentary Evidence, Case No. IT-05- !87-PT, (10 October 2010). 79 Neal Ungerleider, Violence and Death in Africa, 160 Characters at a Time , Fastcompany, (October 5, 2010) available at http://www.fastcompany.com/1693190/nigeria-sms-text-message-riot 76
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policymakers of an important source of information and make decision making more ad hoc and less systematic than it needs to be.” 80 Such reaction by USA initiated a chain of events which saw country heads reacting sharply and countries working upon their cyber and whistleblower laws. 81 It can thus be inferred that an unspoken and instant custom developed among the nation states to condemn such acts and to send out a strong deterrence message by collectively taking a stand against such disclosure. The most noticeable recognition of electronic media, which impliedly includes social media, is from the United Nations itself.82 When it comes to digital evidence, the principle of Chain of Custody is is put to use. This principle is used in determining admissibility of digital evidence taking into account the fact that digital evidence can be changed/tampered with.83 ‘Chain of custody’ refers to the “chronological and careful documentation of evidence to establish its connection to an alleged crime or incident”.84 From the beginning to the end of the process, it is necessary to be able to demonstrate every single step undertaken to ensure ‘traceability’ and ‘continuity’ of the evidence from the incident to the courtroom. 85 In this determination, the principle of chain of custody is applied to digital evidence in the same manner as it is applied to physical-documentary evidence, thereby providing scope for its admissibility. Considering the fact that this sort of admissibility is recognised by the United Nations and no country has expressly opposed this admissibility, implies the opinio juris of all the states to be actively and willingly bound by the United Nations resolutions and conduct.
80
81
82
83
84 85
How to Read WikiLeaks , available at R.N. Hass, (Nov 29, 2010) http://www.cfr.org/diplomacy-and-statecraft http://www.cfr.org/diplomacy -and-statecraft/read-wikileaks/p23 /read-wikileaks/p23500?cid=rss-fullf 500?cid=rss-fullfeedeedhow_to_read_wikileaks-112910 how_to_read_wikileaks-11 2910 [Last Accesse on 5 April 2014]. Gillard Condemns Wikileaks , The Sydney Morning Herald, Dec 2, 2010. Black, Sherwood & Kamali, WikiLeaks claims are 'psychological warfare' says Ahmadinejad, The Guardian, Nov 29, 2010. See , UNITED N ATIONS OFFICE ON DRUGS AND CRIME (UNODC), CRIME SCENE AND PHYSICAL E VIDENCE A WARENESS FOR NON FORENSIC PERSONNEL (New York, 2009). Lucy L. Thomson, Admissibility of Electronic Documentation as Evidence in U.S. Courts , Centre For Research Libraries, Human Rights Evidence Study, (December 1, 2009), available at http://www.crl.edu/sites/de http://www.crl.edu/sites/de fault/files/attachments/pages/Thomson-E-evide fault/files/attachments/pages/Thomson-E-evidence-report.pdf nce-report.pdf Id. Id .
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This admissibility proved to be sufficiently useful in Muhammar Gaddafi’s murder case.86 In October 2011, cell phone videos surfaced depicting Muhammar Gaddafi’s death. These videos raised suspicions of war crimes following which the International Criminal Court (ICC) Prosecutor proceeded with the prosecution prosecution and investigation. These videos were used as corroborative evidence by the ICC prosecutor to scrutinise whether Gadaffi’s death was a war crime.87 The admissibility of such evidence led to the proof of gross International Humanitarian Law violations, putting liability on the state actors responsible for it. No time could be lost in proving first that such videos can be admitted as evidence because it would run the risk of counter-actions by the state. The Instant Customary Law which had developed in favour of its admissibility, and which Libya had become a party to by not objecting to such practice being followed by other countries and by UN, became binding on Libya. Such instances are strengthening the belief in admissibility of social media as evidence. As a result, there are many organisations today that are active in collecting electronic evidence evidence and digital news and incident reports. 88 It is quite clear that a customary law is established when it influences state conduct because of its legal nature. 89 One of the most qualified commentators on the jurisprudence of international law, Sir Hersch Lauterpacht opines that all uniform conduct of Governments (or, abstention there from) should be regarded as evidence of the opinio necessitates juris except when it is shown that conduct in question was not accompanied by any such intention. 90 The general recognition test regarding customary law could be found in West Rand Central Gold Mining Company Ltd. V. The King 91 wherein the court ruled that a valid international custom should be proved by satisfactory evidence that the The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi [2012]. ICC- 01/11-01/11. 87 Sheridan, Groups seek probe of Gaddafi’s death, The Washington Post, October 22, 2011. 88 International NGOs like Human Rights Watch and WITNESS are some of the examples of such organisations. A famous organisation of Mexico called Canalseisdejulio (Canal 6) is active in collecting alternative information outside the influence of state-sponsored media and large private houses. 89 See generally J J ACK L. GOLDSMITH & ERIC A. POSNER , THE LIMITS OF INTERNATIONAL L AW 3 (2005). (Based on the reasoning that international law evolves as a result of states acting rationally to maximise their interests, according to the distribution of state power, and the perceptions of other states’ interest). 90 H. L AUTERPACHT , THE DEVELOPMENT OF INTERNATIONAL L AW B Y THE INTERNATIONAL COURT, (Cambridge University Press, 2003). See also the dissenting opinion of Judge Lachs in North Sea Continental Shelf Cases; Federal Republic of Germany v. Denmark and The Netherlands [1969] I.C.J Reports 3. and D’Amato, Supra note 16. 91 West Rand Central Gold Mining Company v. The King, 2 K.B. 291[1905]. 86
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custom is of such a nature that it has received general consent of the states and no civilised states shall oppose it. The above quoted illustrations prove to a certain extent that the admissibility, acceptability and recognition of social media as valid evidence in the international arena can be termed as a form of Instant Customary Law. The discussion in the North Sea Continental Shelf Cases92 is consistent with this inductive reasoning, “Some states have at first probably accepted the rules in question, as states usually do, because they found them convenient and useful, the best possible solution for the problems involved. Others may also have been convinced that the instrument elaborated was to become and would in due course become general law. Many states have followed suit under the conviction that it was law.” In other words, the quiet or otherwise acceptance of a rule by state should be seen as a milestone in the establishment of that rule as a generally accepted law.
IV.
CONCLUSION
We conclude by remarking that the growth of law is imperative with the evolution of society. Similar is the case with International Law with respect to customary formation of law and international relations. Codification is a universally progressive step in the path of law and Instant Customary Law vouches for something similar. Instant Customary Law warrants w arrants that a gestation period is not necessary for the formation of customary rules and aims to remove the arbitrariness emerging out of it by focusing on the systemised aspect of sources of International Law i.e. treaties and resolutions. In light of the various new age global phenomenon which have emerged in the past couple of decades instantaneous action is the need of the hour, not only because time is of utmost consideration but systemised action is desirable and serves a constructive purpose. This systemisation is in contrast to the uncertainties prevailing in traditional customary law due to the long gestation period and no settled mechanism to discern the legal intent out of state practice or settle upon a specified time period for a state practice. A definite time period is also not plausible because of differing facts, circumstances and municipal laws or customs.93 Therefore Instant Customary Law by relying on just one decisive element limits these uncertainties, making it more determinable and systemised. 92 93
ICJ Reports, 1986 1986 at 98; 76 ILR at 432. Supra note. 1 at 76.
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International Law is becoming increasingly and intrinsically dynamic in its approach. With the United Nations gradually increasing its stronghold over global affairs over time, establishing its authority as a supra-national body, and states striving for express recognition of formal legal intent along with state practice, Instant Customary International Law tries to bridge this gap between customary recognition of a state’s legal intent and minimal state practice. Though semantically, it comes c omes across as a paradoxical term in itself but it is not contradictory semantics which we should be worried about. Instantaneous recognition of state practice as customs is becoming increasingly prevalent and can be easily touted as the way forward. The Bush Doctrine, legal effect of UN resolutions and treaties, the the Arab Spring in context of Libya and the emerging admissibility and evidentiary value of digital-social media in custom formation were some of the various incidents to fathom the depth and reach of the practicability of Instant Customary International Law. It should not be understood as an opposition to the Customary Source of International Law, but rather as Customary Law reequipped to be able to discern and explain the contemporary global phenomenon which could not have been predicted while the traditional view of Customary International Law had installed itself back in the 1940’s and 1950’s. It proves to be an efficient rule to bind states, which otherwise wouldn’t have been bound, and questions the states of their practice, while being an equally efficient tool of understanding International State actions from a customary perspective. It would, without an iota of incertitude, prove to be a prominent source of international law and a much-discussed aspect of customary law in future, with all its uncertainties and a nd unenforceability resolved.
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A CRITICAL OVERVIEW OVERVIEW OF THE ASSISTED REPRODUCTIVE TECHNOLOGIES (REGULATION) (REGULATION) BILL, 2010
Sriparna Dutta Choudhury * The practice of surrogacy today contemplates the use of assisted reproductive technology, technology, which makes it possible possible for couples who are unable to conceive conceive children, to use their own gametes to create their own unique embryos embryos and for these embryos to be transferred to a surrogate. 1However, like most other developments in reproductive biology, the public perception of surrogacy vacillates between two extremes: pro-family action on one hand and commodification of women as breeder machines on the other. Contributing to this polarisation of opinion is the growing popularity of India as a prefer p referred red destination for surrogacy on account of its lack of well-defined laws on the subject. Therefore, there is an urgent need to establish a legal structure to regulate the burgeoning surrogacy industry in India and address the ethical, sociological and economic concerns associated with it. The Assisted Reproductive Technologies (Regulation) Bill, 2010, currently pending in Parliament, aims to achieve the abovementioned goals. goals. However, there exists much much scope for improvement imp rovement on various various key parameters. This paper attempts to identify and address the shortfalls and omissions in the Bill and suggests policy recommendations recommendations for protection p rotection of rights, rights, particularly those of the surrogate mother.
I.
INTRODUCTION
In Indian society, the institution of marriage is sacrosanct and plays a pivotal role in the continuation of lineage. The ability to produce children or procreation is generally considered by society to be one of the fundamental concomitants of marriage. The hurdle hurdle arises when a couple couple is unable to procreate through conventional biological means. However, due to advancements in medical science, infertility is not an ineradicable hurdle or a reason to remain distant from experiencing parenthood any more. In this regard, it is surrogacy su rrogacy which embraces these striving parents with hope. "
1
IInd year, L.L. B., Campus Law Centre, Faculty of Law, University of Delhi. EPRODUCTION UPDATE, Vol. 9, No. 5, 483Peter R. Brinsden, Gestational Surrogacy , HUMAN R EPRODUCTION 491 (2003) available at http://humupd.oxfordjournals.org/content/9/5/483.full.pdf?origin=publication_detail.
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Surrogacy is commercial or altruistic depending on whether the surrogate receives financial remuneration/compensation for her assistance or not. Commercial Surrogacy is a form of surrogacy in which a gestational carrier carrier is paid to carry a child to maturity in her womb and is usually resorted to by well to do infertile couples who can afford the cost involved.2 Altruistic surrogacy, on the other hand, is the kind wherein there is no involvement of money as a consideration consideration for the surrogate. The surrogate sur rogate carries the child of a couple purely on the basis of love and affection. Today, there is prolific growth in reproductive tourism and especially, commercial surrogacy. This proliferating nature of commercial surrogacy led the Apex Court of India to observe in Baby Manji Yamada v . Union of India and Another 3 , that commercial surrogacy is reaching “industry proportions”. The Court declared commercial surrogacy and surrogacy contracts as legal. The Court stated that, “Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party”.4 India has emerged as a favoured surrogacy destination primarily for two reasons – (i) affordable high end medical facilities as compared to developed countries and (ii) absence of governmental regulations. 5 At the present time, there is no law to govern surrogacy in India with the Assisted Reproductive Technologies Technologies (Regulation) Bill, 2010 still pending in Parliament. 6 The Assisted Reproductive Technologies (Regulation) Bill (hereinafter referred to as the “Bill”) was introduced by the Ministry of Health and Family Welfare in 2010 to codify the use of artificial reproductive technologies in the wake of legal, ethical, commercial, and technological challenges that existed within India’s reproductive reproductive advancemen advancementt domain. Chapter 1 of the Bill captioned ‘Definitions’ gave expression expression to the Baby Manji judgment through section 2(aa) which defines surrogacy as “an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her 2 3 4 5
6
Baby Manji Yamada v. Union of India & Another, AIR 2009 SC 84. AIR 2009 SC 84, ¶ 9. Id at at ¶ 5. India’s Surrogate Mother Business Raises Questions of Global Ethics , The Associated Press, Dec 30, 2007. Ghulam Nabi Azad, Surrogacy Bill in the Offing , Indian Express, Apr 11, 2013.
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or her husband, with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate”. surro gate”. Using this as the starting point, the following section will examine examine the flaws in the Bill. It will attempt to address the implications the Bill has on the rights and duties of the parties involved, the health of the surrogate, questions of bodily autonomy and its client centric tendency.
II.
INHERENT LOOPHOLES IN THE BILL A. RIGHTS AND DUTIES
Integral to and in connection with the definition clause are the rights and duties of the parties involved in relation to surrogacy. Section 34 of the Bill under Chapter VII discusses rights and duties of patients, donors, surrogates and children. Clause (13) of section 34 states “a surrogate mother shall not act as an oocyte donor for the couple or individual, as the case case may be, seeking surrogacy”. It essentially signifies that the surrogate cannot act as the biological mother of the child. This in turn implies that most surrogacy arrangements would take place with a woman who would definitely have to relinquish the child. Since the surrogate would have no choice in the matter of relinquishment, the ‘only-surrogate and not-donor’ specification underpins the acceptance of commercial surrogacy. However, section 34(18) 34(18) is an exception, which makes room for a relative of the commissioning parents to serve as the surrogate mother, and thus extends its purview to include altruistic surrogacy. It states that a person, known or unknown to the couple, can act as a surrogate provided that in case of a relative acting as surrogate, she should belong to the same generation as the women desiring the surrogate. The issue arises in ascertaining if at all there is a departure from the usual course of procedure procedu re in case of a relative volunteering as a surrogate. sur rogate. The Bill fails to mention the terms and conditions of such agreement and if at all; the participation of a relative as a surrogate is subject to the same regulation as that of commercial gestational surrogacy. Hence it leaves these aspects to the whims and fancies of the commissioning parents. B. HEALTH Section 34(5) of the Bill states “…no woman shall act as a surrogate surro gate for more than five successful live births in her life, including her own children”. 145
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This provisio p rovision n is rendered inadequate by the insertion of the word “live”. This word overlooks overlooks a critical aspect to the surrogate’s sur rogate’s health i.e., the number of permitted cycles she can undergo. The number of live births is not equivalent to the number of ART cycles the surrogate undergoes, as the success rate of the procedure is low. Thus, in order to effectually ensure that this commercialisation of manufacturing another’s offspring doesn’t lead to exploitation of the surrogate’s health, the maximum number of ART cycles permitted ought to have been specified in the Bill. The Bill leaves out yet another important aspect i.e .,., breastfeeding. Breastfeeding carries tremendous health benefits both for the child and the mother. A study conducted by the World Health Organisation shows that babies who are fed breast milk have a lower risk of gastro-intestinal illness, illness, allergies, diabetes, chest infections, SIDs (cot death). It is argued ar gued that a woman’s right to breastfeed her child is a human right apart from the obvious and immense health benefits. It assists the uterus to return to its pre-pregnant state faster and reduces the risk of ovarian cancer, osteoporosis, and gestational diabetes and also helps to lose weight after child-birth. child-birth. The Bill fails to mention the period for which the new born born is to be kept with the the surrogate sur rogate if any health related complication of the baby arises. The Bill also suffers from the omission of a provision for counselling of the surrogate in case of any trauma or medical complication post delivery. A study conducted by Canadian Mental Health Association brings into light that post-partum depression is one such complication that is experienced by almost 20% of new mothers. Counselling services should be made available not only for making it easier for a surrogate to part from the child but also to help cope up with separation pangs after she has relinquished the child. Such needs must be taken care of by the intending parents as psychological disorders are a part of the same mutually agreed transaction namely pregnancy. C. CLIENT CENTRIC A combined reading of section 34(2) and 34(3) portrays the Bill to be favouring the client more than the surrogate. Section 34(2) provides that all expenses related to a pregnancy achieved in furtherance of assisted reproductive technology till the child is ready to be delivered as per medical advice to the biological parents shall be borne by the couple or individual seeking surrogacy”. Whereas section 34(3) states, “…the surrogate mother may
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also receive monetary compensation from the couple or individual, as the case may be, for agreeing to act as such surrogate”. sur rogate”. The term “shall” has been employed in section 34(2), thus making it mandatory for the intending couple to financially protect the surrogate during the full tenure of surrogacy. surro gacy. On the other other hand, the term term employed in section 34(3) with respect to monetary compensation is “may be” and ergo puts the encumbrance on the surrogate mother to claim it. This not only acts as a stumbling block in case of enforcement of monetary compensation but also epitomises the policy maker’s abdication of his primary role as the defender of the rights of the the citizens in favour of his secondary role role as promoter of fertility tourism. It also raises a question on the benefit of having a legislation that puts a surrogate in between altruism and commercial without clearly taking a stand. Most surrogates surro gates come from the lower lower economic and social strata of the society with little education and limited income earning opportunities. The cumulative effect of all these factors makes poverty-stricken women in India India prone to economic exploitation by agents working for commissioning parents. In order to pre-empt them from such abuse and exploitation, a mandatory provision of of independent advocacy for the surrogates surro gates to represent their interests to both the clients (commissioning parents) and the clinician should be endorsed in the Bill. Independent advocacy would also be an effective remedy for contract negotiations and medical decision making on the part of the surrogate. sur rogate. The current cur rent Bill fails to address any of of these concerns and thus, thus, undermines the role of the surrogate. The Bill in section 34(24) mentions that the commissioning parents shall ensure that the surrogate mother and the child she delivers are “appropriately insured”. Insurance is indeed indispensable but the insertion of the word ‘appropriate’ is not sufficiently sufficiently lucid and thus leaves scope for possible misuse of this provision which is detrimental to the interest of the surrogate. Hence, the language of the Bill needs elaboration on the nature and extent of insurance that should be provided. D. BODILY AUTONOMY The Bill in section 23(5) seizes the surrogate’s sur rogate’s rights of bodily autonomy to choose her own reproductive rights and places the power to decide in the hands of the commissioning parents. It states “Where a multiple pregnancy occurs as a result of assisted reproductive technology, the concerned 147
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assisted reproductive technology clinic shall inform the patient immediately of the multiple pregnancy and its medical implications and may carry out foetal reduction after appropriate counselling”. This section seems to be in conflict with the judgment given in Suchita Srivastava v. Chandigarh Administration 7, where it was held – “the woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. Reproductive choices can be exercised to procreate as well as to abstain from procreating”. Further, Fu rther, in B.K. Parthasarthi v. Government 8 of Andhra Pradesh , the High Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy”. The Committee on on Ethics of the American American College of Obstetricians and Gynaecologists9 stated in the Committee Opinion “…multi-foetal pregnancies increase the risk of both maternal and neonatal morbidity and mortality. Maternal risk of multi-foetal pregnancies includes hypertension, preeclampsia, gestational diabetes and postpartum haemorrhage”. A woman’s right to control her body far outweighs others’ right to have the kind and number of children they want and also such maternal risk cannot be looked upon as an occupational hazard. Thus, Thus, the Bill has failed considerably to protect the rights and welfare of those women who are the bedrock upon which the assisted reproductive technology industry is built. All major decisions relating to the foetus as well as the gestating mother, including necessary abortion during the full tenure of the pregnancy, should be the sole discretion of the surrogate and not be subject to the wishes of the intending couple. Due to fallacy in the language of the current Bill, the surrogate’s surro gate’s service service shifts from the voluntarism voluntarism of the surrogate’s womb to the complete temporary rental of her body, thereby depriving the sur surrogate rogate of her fundamental fundamental reproductive rights. rights. In the domain of surrogacy, reproductive autonomy of the surrogate holds paramount significance, the negation of which would tantamount to subjugation, oppression and exploitation of the surrogate. Unfortunately, the western liberal feminist perspective of considering surrogacy su rrogacy as an exercise of reproductive choice and economic autonomy doesn’t apply to Indian 7 8 9
AIR 2010 SC 235. AIR 2000 A.P.156. Pregnan cy Reduction, Committee Com mittee American College of Obstetricians and Gynecologists, Multifetal Pregnancy Opinion No. 553, (Feb 2013), available at https://www.acog.org/Resources_And_Publications/Committee_Opinions/Committee_on _Ethics/Multifetal_Pregnancy _Ethics/Multifet al_Pregnancy_Reduction. _Reduction.
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surrogates. The existence of choice on part of these women is highly disputable owing to the socio economic conditions which determine their choice. It is argued that their freedom of choice is often eclipsed by poverty, low education levels, marginalisation in labour markets and patriarchal social and family structure and hence, their freedom of choice is socially and economically constructed. Moreover, the prevalence of the patrilineal descent 10 as well as patrilocal residence 11, and the scourge of the dowry system can make a woman vulnerable to forced surrogacy sur rogacy by a mother-in-law or husband12. In such social conditions, there may exist a situation where the consent obtained from the surrogate may not be consent in the true sense of the word. Though the provisions of the Indian Contract Act, 1872 may apply in such situations, the need for the Bill itself to provide for a consent mechanism to examine if the consent obtained is true, bona fide, free and out of one’s own volition is essential and cannot be ignored. Thus, legalising commercial gestational surrogacy surro gacy as intended by the Bill without without mechanisms from within the Bill that protect the rights of the the surrogate surro gate actively is likely to to leave much much room for adverse interpretation and abuse.
III.
CONCLUSION
The Assisted Reproductive Technologies Bill intends to legalise commercial surrogacy. However, the worldwide discourse on the ethical and moral facets seems to have have been ignored. The Bill also rejects rejects the recommendations of the Law Commission in its 228th Report 13, which is incidentally titled, “Need for Legislation to Regulate Assisted Reproductive Technology Clinics As well As Rights and Obligations of Parties to a Surrogacy”. The said Report had recommended banning commercial surrogacy while accepting altruistic surrogacy surro gacy in India. There exists a need to redefine and restructure the Bill in order to balance the risks and benefits of surrogacy. On one hand, while banning surrogacy completely on vague moral grounds would be futile, on the other hand, legalising commercial surrogacy is also not free Unilineal descent that follows the male line also known as ‘agnatic descent’. The residence pattern in which a newly married couple moves in with or near the groom’s father’s house. 12 Aastha Sharma, Surrogacy: Law’s Labour Lost , The Hindu, July 25, 2010. 13 L AW COMMISSION OF INDIA, NEED FOR LEGISLATION TO R EGULATE EGULATE ASSISTED EPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS R IGHTS IGHTS AND OBLIGATIONS OF P ARTIES R EPRODUCTIVE TO A SURROGACY , NUMBER 228, (Aug 5, 2009) available at http://lawcommissionofindia.nic.in/ reports/report228.pdf. 10 11
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from questionable ends. Since surrogacy is a complex concept, the law must be equally comprehensive in defending human liberty and facilitating realisation of positive entitlements. Due to the involvement of commerce in most surrogacy arrangements, the role of a surrogate is not only an extremely crucial one but it is also immensely vulnerable to pressure and duress. The entire burgeoning bur geoning industry of surrogacy sur rogacy pivots around the surrogate and her womb. Only when the Indian society enters the era of postfeminism where equal rights for women means giving giving women the autonomy to choose for themselves, can commercial surrogacy surro gacy be espoused in a truly egalitarian manner.
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