Himanshi Srivastava & Vaibavi SG
Setting the Scene
China’s latest action to “freeze” the visas of the correspondents of The Prasar Bharati and The Hindu has invited debate from all sides. While India hopes for the restoration of normalcy and the facilitation of journalism by the Indian correspondents, China contends that India has for long neglected the issue of visas of Chinese journalists, which has compelled it to resort to countermeasures to safeguard the interests of its media organisations. While in 2021, the visa of a Chinese journalist working in India was not renewed, in 2017, India shortened the visa for Chinese journalists to three months, down from the one year. Further, in July 2016, India expelled three journalists from the state media network Xinhua, after they came under the “adverse attention of security agencies”. Citing these instances, China has levelled allegations of “unfair and discriminatory treatment” towards Chinese journalists in India in justification of its actions. Contemporary international law regards countermeasures as enforcement mechanisms used by states for asserting legal rights and ensuring compliance with the law, after exhausting all other amicable means of settlement. Thus, in light of the current scenario, the piece objectively analyses the legality or illegality of China’s actions, drawing comparisons from various relevant instances catering to the larger questions of state sovereignty, state responsibility, and target sanctions.
Understanding the fundamental of State Responsibility
Though not legally binding, the Articles on the Responsibility of States for Internationally Wrongful Acts [‘ARSIWA’] is an authoritative instrument on the law of international responsibility, which is largely reflective of customary international law, and under which a wrongful act on the part of a State entails responsibility. Before delving into the broader questions, it is essential to distinguish between state conduct of legal and illegal nature. Injured states resort to different actions- in the forms of retorsion and countermeasures. In international law, ‘retorsion’ is unfriendly, but legal conduct, which does not violate any international obligation of the State. Acts of retorsion are generally aimed at pressurising the State responsible for an internationally wrongful act, for its cessation.
Such acts are fundamentally distinguishable from countermeasures, which are primarily inconsistent with international law but may be justified in adhering to the prescribed conditions as mentioned in the ARSIWA. Countermeasures are unilateral actions resorted to by the injured state, as a consequence of an internationally wrongful act committed by a State, that enable it to take non-forcible countermeasures against the guilty State. Only in response to an internationally wrongful act and only against the State that committed such an act, may non-forcible countermeasures as required by Article 50 of the ARSIWA, be used. Following this, the meaning and ambit attributed to “internationally wrongful act” must be addressed. In Article 12 of the ARSIWA, the International Law Commission discusses that an internationally wrongful act is an act of a state in breach of its obligations, both treaty and non-treaty ones. Courts have used similar expressions in judgements. For instance, the ICJ in the Reparation for Injuries Suffered case chose to speak similarly, while the Arbitral Tribunal in the Rainbow Warrior affair referred to it as “any violation by a state of any obligation”.
Are Chinese actions justifiable as Countermeasures?
If yes,are we to say that States cannot control the entry and exit in relation to their territory then? The paradigm of history concerning the movement of persons has seen considerable shifts. Vattel opined that “a sovereign may prohibit entrance into his territory, either to all foreigners in general or to certain persons, or in certain cases or for certain particular purposes, according as the welfare of the state may require”. A similar stance can be seen in the widely cited case of Nishimura Ekiu v. US, where the US Supreme Court viewed such discretion as “an accepted maxim of international law”.
Turning to the factual matrix, if China intends to take countermeasures against India, the law requires a prior violation by India. So far, China alleges unfair and discriminatory practices by India in its acts of expelling Chinese journalists and changing the visa policy.
The Indian visa policy provides journalist visas with appropriate sub-categories granting up to three months’ stay in India and a six months Journalist visa, with a single or double entry, given in rare and exceptional cases. Since India has maintained a uniform position for journalists worldwide, Chinese allegations of its actions being discriminatory hold no ground. Moreover, the Chinese journalists were expelled due to “security concerns”, which is an internal matter of India. A state in its sovereign power enters into any agreement or obligation vis-a-vis another state.
But once there lies an obligation, it limits the powers of the state to act in accordance with it. An act of a state may be one of inherent sovereignty but may also be violative of some international obligation. For instance, in cases of economic sanctions, a state inherently has the right to decide whether to have or continue trade relations or not, however, the act of imposing sanctions can still attract state responsibility in case it violates GATT or other trade agreements to which the State is party to. Sovereignty, therefore, does not mean immunity from responsibility. In other words, responsibility can be seen as the medium which balances state sovereignty on one hand and the principles of international law or governance on the other. Thus, circumscribing the notion of sovereignty. Here, since the entry and exit into its territory and the visa policy lie within the ambit of India’s sovereign power, in the absence of any obligation to the contrary, its actions cannot be said to be internationally wrongful.
More clarity can be afforded by examining analogous state practices. As many as 17 foreign journalists were allegedly expelled from China in 2020. In another instance, the Cuban authorities cancelled visas issued to a US Representative and his staff. Whilst not viewing it as a breach of international law, the authorities denounced the Cuban action as being “a great discourtesy to a U.S. congressman and an example of Cuban government’s intimidation of human rights activists.” There have not been claims of wrongfulness made by any state so suffered against any such acts hitherto which reflect the general practice that states do not consider such acts as countermeasures and thus any contrary assertions made by China, entail the risks of unilateral appreciation or qualification, which may go well beyond the contours of international law, into the realm of politics.
Gleaning from the Cuban example, the alleged conduct of India over the years, could at most, be considered a “discourtesy” if China is to argue. Discourtesy cannot be equated to a wrongful act, as the latter involves the violation of a right or an obligation, while the former is a mere expression of sovereign power, albeit contrary to the interest or desires of the other state. The margin of difference lies here. And, when not qualified as an international wrongdoing, questions of state responsibility do not arise.
Alternatively, what if China is indeed able to prove a wrongful act by India? Would Chinese actions become legitimate by this mere fact? The answer to this quintessential question entails the procedural and substantive safeguards required by various provisions of the ARSIWA. The law herein provides for objects and limits of countermeasures, exceptional situations, proportionality, and the conditions precedent in Articles 49 to 52. Such measures must be temporary and reversible in nature, and solely aim at the cessation of the wrongful act and should not be punitive. They must not be in contravention of Article 2(4) of the UN Charter, and not be averse to fundamental human rights and other procedural requirements relating to prior notice and negotiations per Article 52. Considering this scenario, so far, China has fulfilled the requirement of calling India, i.e., the faulting state, to cease or correct its conduct. However, future actions by China would determine the legitimacy of such measures, provided India’s wrongful act is proven.
The Question of Target Sanctions
The present situation has brought different aspects of state responsibility to public discourse. One of them could be the kinds of measures available to a state. The Chinese act was not of a general kind in imposition but affected certain individuals alone. This reflects trends of the imposition of “target sanctions” or “smart sanctions”. Be it countermeasures or retorsion, states now do recognize the destructive out-turns of the general imposition of unilateral measures. Instead, the shift has been towards identifying certain key members, leaders, classes, or sectors. Thus, the name is targeted or smart. The Security Council has been pursuing a programme of targeted measures in accordance with Chapter VII of the Charter since 1999, beginning with Resolution 1267.
From a broader perspective, these direct and focused actions may potentially be considered as violating the targeted people’s rights. The Kadi case of the European Court stands as an obvious example of the same. In this case involving the freezing of assets by the European Union, of one Mr. Kadi, the court observed the infringement upon their right to a fair trial wherein they had no or only inadequate possibilities to challenge such determination. However targeted they may be, unilateral targeted sanction programmes potentially have severe negative effects on human rights in the target state due to over-compliance, as underscored by Special Rapporteur Douhan. To appreciate such newer methods, a balance must be maintained while unilateral measures are undertaken by a state; the balance between coercive measures and the interests, rights and consequences of the aftermath.
Conclusion
The legal analysis, under international law, is reasonably clear if these versions of events are deemed factually accurate. Summarily, the piece elaborates on countermeasures, with respect to the provisions of ARSIWA, and the relevant judgments relating to its ambit. While contextualising the current debate simultaneously, aspects of state sovereignty and international obligations have also been put forward. Furthermore, the instances mentioned explain the difference between internationally wrongful state conduct and mere discourtesy, which forms a strong assertion by the authors. It is concluded with emphasis on target and smart sanctions, and a counterfactual which entails the admission of a wrongful act and the limits of countermeasures. Concludingly, the right to control exit or entry into its territory vests with the host state by reason of sovereign power.
Considering that questions of state responsibility would not arise in a situation where the target country has not committed any internationally wrongful act in the first place, China assumes no such right to take countermeasures in the present instance. Such actions and threats of countermeasures may prove to be detrimental to the already strained relations between the two States. Further, discriminatory visa regulations and rigid barriers on the movement of journalists, discourage cross-border journalism and pose a severe threat to the freedom of press as well as the freedom of speech and expression. In addition to it, such instances also pose the danger of unilateral assessment by states and may encourage such practice, where States may for their own convenience, political ends and interests label any action of another State to be internationally wrongful which poses a crucial consequence for the international community. And this interpretation of international law is an effort to present the current standing of law while taking future possibilities and counterfactuals into consideration.
The authors are students at the Dharmashastra National Law University, Jabalpur.
NUALS Law Journal 