By Shuma Talukdar
It would be utopian to believe that the whole world would stand up for Indian Muslims should they get deprived of their citizenship in any considerable numbers as a result of the formation of a National Register of Citizens (NRC) at the pan-India level. We have the precedent of the Rohingya in Myanmar, who were first stripped of their citizenship and then subjected to ethnic cleansing, while the world did not do anything substantial to stop the atrocities, other than critique and denouncement. In spite of its ruling against Myanmar last month (January 2020), there is little that the International Court of Justice (ICJ) can do if Myanmar defies, for it lacks the means of implementation.
For more than two years when the Rohingyas were persecuted in Myanmar the international community kept silent. Even the United Nations failed to take steps to prevent the victimization of the Rohingya by Myanmar’s military because two of the permanent members of the Security Council, China and Russia, did not consider the Rohingya issue as international in nature and termed it as Myanmar’s domestic problem. Interestingly, these two are not only among the top five arms exporters in the world, but also top suppliers to Myanmar. In 2018 alone China’s exported arms worth $1.04 billion, of which 75% were sold in Asia. Since 2013, Myanmar imported arms worth $720 million from China. In just 2018, China sold 105 million arms units to Myanmar that made Myanmar the third largest importer of Chinese arms. Russia sells 43.1% of its arms in Asia and Myanmar purchased 60% of its arms from Russia. In 2018 Russian arms exports were worth $19 billion. China is the fifth largest exporter and Russia, the second largest exporter of arms, globally.
Under the International Law, the Security Council as one of the principal organs of the United Nations is primarily responsible for international peace and security. The five permanent members of the Security Council are the United States, the United Kingdom, France, Russia, and China. Article 27, Para 3 of the United Nations Charter requires the decisions on non-procedural matters to be taken on by vote of nine members, including concurring votes of the permanent members. It means no decision can be taken by the Council without the vote of all the permanent members. In other words, if the concurring vote is withheld by any of the permanent member the proposal shall be deemed vetoed and could not be validly adopted. Ultimately, putting all the powers and control on the ‘big five’ ‘Great Powers’. Though in Public International Law there is no formal procedure by which a state is recognised as a ‘Great Power’, it is determined on the basis of political power. This political power is shaped by the size of the territory, population, international unity, technological superiority and economic strength. Thus, for just deciding whether a matter should be taken into consideration or not consent of all the ‘big five’ is mandatory.
Now, in case a matter is considered and is placed before the ICJ, the ‘big five’ again influence it. In theory, the judges of the ICJ should be elected by the General Assembly and the Security Council in such a manner that the principle legal systems of various geographical regions of the world are well represented. However, we find that the judges there come disproportionately more from four of the five permanent member states, viz., Russia, USA, UK, and France, than from any other states. In such a situation, it is unlikely that the judges appointed in such a manner would not be influenced by the political and economic interests of their own country.
Provisions of International Law further says that if any of the disputing parties does not perform its obligations as per the order of the Court, the other party can bring it before the Security Council under Article 94 (2) of the Charter. The Charter empowers the Security Council to make recommendations or decide the measures to be taken for the implementation of the judgment passed by the Court. But, while making recommendations, the Security Council is under no obligation to conform to the judgment of the Court and may give a totally new solution. This empowers the Council over the Court and increases the scope of getting legal disputes settled on the basis of political postures.
In the case of Myanmar, even India and China, despite their border disputes, came together in supporting Myanmar against the Rohingya. Most of the Buddhist countries, too, supported Myanmar. In a situation where not just the domestic society but even the global society is so polarized on the basis of religion, how can one expect justice?
Secondly, when commercial interests take precedence over concern for human life, how can one expect justice? India acquires 58% of all its arms from Russia and is the largest buyer of Russian weapons in the world. India purchased from Russia arms worth more than $4 million in just 2017. India is also the second largest importer of French arms. Entire South East Asia is an emerging market for Russian manufactured weapons where military spending increased by 57%. Other supplier of arms to India are Israel whose arms export market was $707 million in 2018, United Kingdom whose arms export market was worth $741 million in 2018, and France whose arms export market was $1.76 billion in 2018.
Considering the current situation, should Muslims in India finds themselves in a state similar to that of the Rohingyas in Myanmar in the future, it would be unrealistic of them to hope of any support from the international community, for we have before us the precedent of the Rohingya, to whom the world turned its back, while they were subjected to ethnic cleansing and genocidal violence.
Shuma Talukdar is a lawyer. She holds professional membership of the Supreme Court of India, the Bar Council of India, and the Department of Justice, Ministry of Law, Government of India. Views expressed here are the author’s own.
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