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TeLawgram

TeLawgram’23 (01/09-15/09)

Hello! Telawgram is back with a fortnight’s update that takes you through Supreme Court and High Court decisions, privacy laws, gaming laws, constitutional jurisprudence and international trade laws. The readings will give you a wide range of content – from public international law to criminology and more! Happy Reading!

National:

1. Online Gaming and its Entanglements with the Law as the Industry Grows

On May 17, 2023, the High Court of Karnataka ruled in favour of several petitions filed by Gameskraft which offers “online skill-based gaming platforms … across a variety of categories such as card games”. The Directorate General of Goods and Services Tax Intelligence (‘DGGSTI’) had issued a notice to Gameskraft which stated that the company owed taxes worth Rs 21,000 crores. The Court, against the notice, characterised the services of Gameskraft technologies as a platform that enabled users to engage in games of skill like ‘Rummy’, as opposed to games of mere chance on the internet. Thus, it excused  the platform from taxation under “Betting” and Gambling” in the CGST Act and Rules.

The landscape of the online gaming industry shook  as the Goods and Services Tax (GST) council in its 50th meeting decided it was going to impose a flat 28 per cent tax on online gaming, casinos and horse racing. Finance Minister of India Nirmal Sitharaman stated “There will be an amendment to Schedule III of the GST Act and we will be bringing in online gaming into the actionable claim list where item number 6 clearly says betting, gambling and lottery are already in it.” In response to the flat 28 per cent tax imposition, the Minister of State for Electronics & Information Technology (MeitY) Rajeev Chandrasekhar has stated he would petition the GST council to change the regulatory framework.

On September 6, 2023, Gameskraft’s fate was up in the air once again; the Supreme Court of India placed a stay on the  Karnataka High Court’s decision to quash the notice issued by DGGSTI demanding indirect tax payments from Gameskraft. These developments are critical to the Indian economic and legal systems as according to Lumikai, a gaming and interactive media venture fund, India’s gaming revenue increased from USD 2 billion in FY21 to USD 2.6 billion in FY22 and is projected to grow at a CAGR (Compound annual growth rate) of 27 per cent to USD 8.6 billion in FY27.

Suggested readings:

  1. Read the judgement of the Karnataka High Court here. 
  2. Read the order of the Supreme Court of India here.
  3. Shubham Singh, Direct Stress on Indirect Taxes of the Online Gaming Industry,  Indian Review of Corporate and Commercial Laws (Aug. 06, 2023), https://www.irccl.in/post/direct-stress-on-indirect-taxes-of-the-online-gaming-industry. 
  4. Nalin Bajaj, An Analysis of Karnataka HC’s Decision in Gamekraft’s Technologies (July 03, 2023), https://www.mondaq.com/india/gaming/1336048/an-analysis-of-karnataka-hcs-decision-in-gameskraft-technologies. 
  5. Rupam Dubey & Parth Kantak Magrish, Game on Taxes Doubled: Unraveling the Dual Taxation Conundrum in India’s Online Gaming Industry: Part I, IndiaCorpLaw (July 25, 2023), https://indiacorplaw.in/2023/07/game-on-taxes-doubled-unraveling-the-dual-taxation-conundrum-in-indias-online-gaming-industry-part-i.html#:~:text=The%20Ministry%20of%20Finance%20promptly,Rs%2010%2C000%20for%20TDS%20purposes.. 
  6. Rupam Dubey & Parth Kantak Magrish, Game on Taxes Doubled: Unraveling the Dual Taxation Conundrum in India’s Online Gaming Industry: Part II,  IndiaCorpLaw (July 26, 2023), https://indiacorplaw.in/2023/07/game-on-taxes-doubled-unraveling-the-dual-taxation-conundrum-in-indias-online-gaming-industry-part-ii.html. 

2. SC Clarifies: Legislatures cannot directly overrule a Judgment, but can fix flaws pointed out during judicial review

On September 7, 2023, a division bench of the Supreme Court comprising Justice B.V. Nagarathna & Justice Ujjal Bhuyan clarified that the legislature cannot make laws to directly overrule a judgement. Laws cannot be made to validate an act previously held ultra vires by the judiciary. Such “legislative overruling of judgement” would be considered illegal and as a colourable legislation. This is an important principle glossing over the doctrine of separation of powers.  The Bench explained this in the matter of NHPC Ltd. Vs. State Of Himachal Pradesh Secretary & Ors.

The relevant facts are: The Himachal Pradesh Passengers and Goods Taxation Act, 1955 (“the Act”) laid down the law for taxing public transport in the State. NHPC Ltd., the appellant, was ordered to pay taxes on passengers in accordance with the Act, but they were only ferrying their employees and their children without charging any ticket fees. The High Court decided that the provisions in the Act did not provide for charging tax from the specific context NHPC Ltd. was operating in.  It prompted the Himachal Legislature to fix the loopholes in the Act that formed the basis for the High Court’s verdict. The Act  was passed by the legislature with retrospective effect, making the judgement of the High Court invalid and enabling the charge of passenger tax on NHPC’s transits. The amendment was challenged by NHPC Ltd. in the instant case, and the vires of the same was upheld by the Apex Court, along with clarifying in what context it would have held otherwise.

What is permissible, is the lawmakers correcting flaws or loopholes discovered in judicial review by competent Courts. Previous actions may be validated, by giving these correctional amendments a retrospective effect. The basis of previous verdicts by courts may be removed by the legislature, amending the law retrospectively, given that the result is that a court can no longer arrive at the judgement it previously might have arrived at. What is not allowed is the legislature enacting a law purely to validate acts carried out under a previous law, which was struck down by the court.

Suggested readings:

  1. Click here for the judgement. 
  2. Nicholas Stephanopolous, The Case for the Legislative Override, 10 UCLA J. INT’L L. & FOREIGN AFF. 250 (2005). 

Luc B. Tremblay, The legitimacy of judicial review: The limits of dialogue between courts and legislatures, International Journal of Constitutional Law, Volume 3, Issue 4, October 2005, Pages 617–648, https://doi.org/10.1093/icon/moi042.

3. Supreme Court Observes That Preventive Detention Laws Are Exceptional Measures

A Division Bench of the Supreme Court bench of Justice Surya Kanta and Justice Dipankar Dutta, in a recent judgement, stated that preventive detention laws are an ‘exceptional measure reserved for tackling emergent situations’ and must not be used as a tool for enforcing ‘law and order’. The Court had previously condemned the increasing practice in Telangana of issuing preventive detention orders hastily and without due regard for the liberty and freedom granted to people under the Constitution of India. The Court reminded the authorities in Telangana that the stringent provisions of the Preventive Detention Act should not be employed without taking into account the constitutional safeguards of fundamental rights.

The Apex Court was reviewing an appeal challenging a decision by the Telangana High Court, which had declined to intervene in a detention order against the petitioner’s husband in a habeas corpus writ filed by her. The impugned detention order had been passed under Section 3(1) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 1986 to prevent the detainee from acting in a manner prejudicial to the maintenance of ‘public order’. The Court found a failure to appreciate the difference between the maintenance of ‘law and order’ and the maintenance of ‘public order’ in the impugned detention order. It was further clarified that for an act to be considered a disruption to “public order” and fall within the scope of the Preventive Detention Act, it must directly impact the general public and evoke emotions such as fear, panic, or a sense of insecurity. The Court also determined that there were no circumstances warranting the invocation of extraordinary provisions under the Preventive Detention Act when the existing ordinary criminal law was adequate to address the situation involving the detainee. Further, the Supreme Court, having reviewed numerous past judgments concerning the conditions for a lawful detention order and the extent to which it can be subject to judicial review, distilled certain guidelines that constitutional courts must adhere to in this regard. The Court further stated that the detention order must be precise and comprehensible, so that the detainee may potentially contest it.

Suggested readings:

  1. Read the judgement here
  2. Kumar Kartikeya & Avinash Kumar Yadav, Preventive Detention: Anarchical Law, The Criminal Law Blog (Feb. 19, 2021), https://criminallawstudiesnluj.wordpress.com/2021/02/19/preventive-detention-anarchical-law/. 
  3. Gursimran Kaur Bakshi, Preventive Detention no longer viewed as an exceptional measure, The Leaflet (Nov. 24, 2022), https://theleaflet.in/preventive-detention-no-longer-viewed-as-an-exceptional-measure/. 
  4. Derek P. Jinks, The Anatomy of an Institutionalized Emergency: Preventive Detention and Personal Liberty in India, 22 Michigan International Law Journal 311 (2001). 
  5. Varun Ahuja, Detention by SMS – A Caution Against Short-Circuiting Article 22 Safeguards, Indian Constitutional Law and Philosophy (July 05, 2023), https://indconlawphil.wordpress.com/tag/preventive-detention/.

4. Kerala HC: Watching porn in private is not an offence

The Kerala High Court, on September 5th, 2023, held that watching pornography in private without exhibiting it to others cannot be an offence under Section 292 of the IPC. The single-judge bench consisting of Justice P. V. Kunhikrishnan acquitted a man charged with obscenity. The accused was arrested by the Police from the roadside, for watching pornographic content on his phone. However, the Court perused the IPC Section 292 and quashed the criminal proceedings initiated against him. It opined that watching obscene photos/videos from a mobile phone in privacy is not by itself an offence under Section 292 of IPC, which penalises obscenity.

Section 292(2)(a) of the IPC reads as follows,

(2) Whoever –(a) sells, lets to hire, distributes, publicity exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever….

However, the Court opined that, in order to attract Section 292 of the IPC, the accused should have tried to circulate or distribute or publicly exhibit any obscene video or photos. and that mere watching of pornography in one’s privacy would not amount to the offence. The Court also held that it would be an interference with personal choice and intrusion of privacy to declare a person watching pornography in his private time to be an offence.

Suggested readings:

  1. Click here for the judgement.
  2. Vidhi Srivastava, Rethinking our Perspectives to Criminal Obscenity- From Moralism to Harm Principle, The Criminal Law Blog (Aug. 01, 2022), https://criminallawstudiesnluj.wordpress.com/2022/08/01/rethinking-our-perspectives-to-criminal-obscenity-from-moralism-to-harm-principle/. 
  3. Arnav Mathur, Justice in the Digital Age: Addressing Non-Consensual Dissemination of Intimate Images in India’s Penal Code, P39A Criminal Law Blog (May 22, 2023), https://p39ablog.com/2023/05/justice-in-the-digital-age-addressing-non-consensual-dissemination-of-intimate-images-in-indias-penal-code/. 
  4. Jerry L. McDaniel III, Constitutional Law: Florida’s Privacy Protection for Obscenity, 43 Fla. L. Rev. 405 (1991).

5. Supreme Court rules that Judges should engage in the process of truth discovery

On September 4th, 2023, the Supreme Court overturned a Patna High Court judgement confirming a death sentence after finding numerous flaws with the High Court’s approach. The flaws include erroneous recordings, the disregard of evidence provided by independent witnesses, and the absence of material evidence. The Supreme Court also made strong observations about the concept of a fair trial while remitting the matter for the High Court’s consideration. In the judgement authored by Justice JB Pardiwala, the Court observed a free and fair trial as being a sine qua non of Article 21. The Court opined on the genesis of the concept of a fair trial and also emphasised on India following the accusatorial or adversarial system of common law for dispensing justice. The Court further noted that truth was the soul of justice and highlighted the Malimath Committee on Judicial Reforms, which had elaborately discussed the paramount duty of courts to search for truth. The Court opined that although the judge should be impartial and free of bias, the presiding judge cannot afford to remain a mute spectator and must take an active interest, eliciting all necessary and relevant information, to impart justice fairly, free and effectively. To support this observation, the Court referred to the case of Ram Chander v. State of Haryana, (1981) 3 SCC 191, where Justice Chinnappa Reddy stated that for a criminal court to administer justice effectively, the presiding judge should not merely act as a spectator or a mere recorder, but should actively engage in the trial by asking questions to witnesses in order to uncover the truth.

Suggested readings:

  1. Read the judgement here.
  2. Dr. Anand K. Deshmukh, Adversarial and Inquisitorial Models of Criminal Justice System: A Comparative Analysis, 2 International of Legal Science and Innovation 70 (2020). chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.ijlsi.com/wp-content/uploads/Adversarial-and-Inquisitorial-Models-of-Criminal-Justice-System-A-Comparative-Analysis.pdf.
  3. Christa Roodt, A Historical Perspective On the Accusatory And Inquisitorial Systems, FUNDAMINA : A JOURNAL OF LEGAL HISTORY (2004). https://journals.co.za/doi/epdf/10.10520/AJA1021545X_71.
  4. Ray Finkelstein, The adversarial system and the search for truth, 37 Monash University Law Review 135 (2011).  https://heinonline.org/HOL/Page?handle=hein.journals/monash37&div=13&g_sent=1&casa_token=&collection=journals.

6. Technology that Tests the Limits of Freedoms

New jurisprudence concerning freedom of speech and expression may develop depending on how the social media platform X’s (Twitter) appeal before a larger bench of the High Court of Karnataka develops. The appeal of X Corp arose from a challenge (WP No. 13710/2022) it raised in a writ petition against the blocking orders issued by the Ministry of Electronics and Information Technology (“MeitY”) under section 69A of the Information and Technology Act. Hon’ble Justice Krishna S. Dixit found the orders issued by MeitY in compliance with the Supreme Court judgement in Shreya Singhal v. Union of India.

The appeal (WA No. 895/2023) is  scheduled for hearing on September 19, 2023 before a larger bench of the High Court of Karnataka and could potentially change the landscape of laws surrounding social media platforms. However, this landslide in the existing state of policy can only be achieved if the larger bench slightly contradicts Justice Krishna S. Dixit’s decision in the seven issues ruled in favour of the Union of India. In light of these tense circumstances, many legal professionals have gone on record expressing their opinions on the matter; Abhishekh Subbiah, founder of Bridge Legal, in a post, remarked in light of the appeal above by X Corp. “ this is a very long-shot ‘if’: IF the judiciary somehow rules, even partially in favour of X, it’s going to be a freedom of expression/censorship case of Constitutional Law proportions that’s going to change social media control and politics in India.” In light of the principal judgement, Radhika Roy, an Associate Legal Counsel at Internet Freedom Foundation, remarked in her analysis of the judgement that “The HC’s liberal interpretation of Section 69A contradicts the observations of the SC in Shreya Singhal v. UoI where it was noted that ambiguity in a statute, especially one relating to freedom of speech and expression, could institute a chilling effect.”   

Suggested readings:

  1. Read Judgement in Shreya Singhal v. Union of India here.
  2. Read Judgement in X Corp. v. Union of India here.
  3. Radhika Roy, Karnataka High Court Finds MeitY’s Blocking Orders Compatible with IT Act, Exemplary Costs for Non-Compliance Imposed on Twitter, Internet Freedom Foundation (July 01, 2023), https://internetfreedom.in/karnataka-high-court-finds-meitys-blocking-orders-compatible-with-it-act-exemplary-costs-for-non-compliance-imposed-on-twitter/ (last visited on September 18, 2023).        
  4. Gerald Manoharan, X Corp. (X, formerly known as Twitter) v/s Union of India – A deterrent for intermediaries in India?, JSA Law (Aug. 03, 2023), https://www.jsalaw.com/articles-publications/x-corp-x-formerly-known-as-twitter-v-s-union-of-india-a-deterrent-for-intermediaries-in-india/ (last visited on September 18, 2023).
  5. Divij Joshi, Karnataka HC Rules Against Twitter’s Plea for Restricting the Scope of Online Blocking Orders, SpicyIP (July 03, 2023), https://spicyip.com/2023/07/karnataka-hc-rules-against-twitters-plea-for-restricting-the-scope-of-online-blocking-orders.html (last visited on September 18, 2023).         
  6. Anindita Barman, Shreya Singhal VS. UOI: Resurgence Of Freedom Of Speech And Expression In The Internet Age, Mondaq (Apr. 20, 2015), https://www.mondaq.com/india/it-and-internet/390462/shreya-singhal-vs-uoi-resurgence-of-freedom-of-speech-and-expression-in-the-internet-age (last visited on September 18, 2023). 
  7. Kartik Kalra, The Karnataka High Court’s Twitter Judgment – II: On nationalist rhetoric as legal reasoning, Indian Constitutional Law and Philosophy (July 03, 2023), https://indconlawphil.wordpress.com/2023/07/03/guest-post-the-karnataka-high-courts-twitter-judgment-ii-on-nationalist-rhetoric-as-legal-reasoning/  (last visited on September 18, 2023).

7. High Courts cannot refuse to follow SC judgments on the grounds of pendency of review or reference to a larger bench

The Supreme Court clarified that the High Courts cannot refuse to follow its binding judgments merely because it has been referred to a larger bench or a review is pending against it.

The bench comprising Justices Vikram Nath and Ahsanuddin Amanullah was deciding a case filed by the Union Territory of Ladakh challenging the allocation of the ‘plough’ symbol to the political party Jammu & Kashmir National Conference. The Court observed that the High Courts were refraining from deciding cases on the grounds that the judgement was referred to a larger bench or a review petition relating to it was pending and that High Courts were refusing deference to a judgement of the Court because a coordination bench had doubted its correctness.

The Apex Court laid down clear guidelines on the approach that the High Courts ought to adopt when deciding cases. It emphasised that High Courts must decide matters based on existing law and not delay decisions for the outcome of references or pending review petitions. It stated that a High Court cannot refuse to follow a judgement merely because a later Coordination Bench had doubted it and that, in the face of conflicting SC judgments by Benches of equal strength, it is the earlier one that is to be followed by the High Courts, which was also held in National Insurance Company Limited v Pranay Sethi, (2017) 16 SCC 6805.

The Court highlighted its powers to revert decisions if circumstances demanded, citing the case of Nabam Rebia and Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1. Addressing the recent reference of the Nabam Rebia judgement to a larger bench by a 5 Judge Bench in Subhash Desai v Principal Secretary, Governor of Maharashtra, 2023 SCC OnLine SC 607, it clarified that the questions directed to the larger bench do not undermine its power to restore the status quo ante.

Suggested readings:

  1. Read the discussed judgement here.
  2. Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1.
  3. V. Nageswara Rao, Conflicting Decisions of Co-Ordinate Benches: Problems and Some Solutions, 32 Journal of the Indian Law Institute 49-67 (1990).
  4. K. Sivananda Kumar, Article 141: Law Declared by Supreme Court to Be Binding on All Courts, SSRN (Jan. 12, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3517950.

8. SC clarifies effect of striking down judgments is retrospective and they become void ab initio

The Constitutional bench comprising of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath, and JK Maheshwari ruled on September 11, 2023 that its 2014 Judgement Subramanian Swamy v. Director CBI, in which Section 6A of the 1946 Delhi Special Police Establishment Act was held to be unconstitutional, would have a retrospective effect.

This law required government approval before investigating certain high-ranking officials for corruption. The 2014 judgement found this section to be violative of Article 14 of the Constitution, as special immunity was given to Central government employees who ranked above a certain level.

In the present case CBI v. R.R. Kishore, the main question was whether the Supreme Court’s earlier decision declaring Section 6A unconstitutional would apply to past or pending cases. This raised issues about the meaning of “void” and the differences between pre and post-Constitution laws under Article 13.

It was clarified and reiterated by the bench that once a law is declared unconstitutional because it violates fundamental rights, it is considered void from the very beginning. The judgement relied upon previous decisions of the court which examined the true scope of the word “void” that  has been interpreted in a number of judgments of this Court beginning 1951 till recently and it has been given different nomenclature such as ‘non est’, ‘void ab initio’ ‘still born’ and ‘unenforceable’. The Court clarified that pre-Constitution laws continue to exist, but their conflicting parts are voided. In contrast, post-Constitution laws found unconstitutional are void from the start. This distinction led to the conclusion that Section 6A was void ab initio. It clarified the retroactive impact of the Court’s earlier ruling, and status of the law which has been held unconstitutional. The principle also has implications for pending cases in courts where a law that has been since held unconstitutional is applied, and ensures that unconstitutional legislation does not have a lasting impact on the legal system.

Suggested readings:

  1. Read the discussed judgement here.
  2. Click here for the Subramanian Swamy v. Director, CBI judgement. 
  3. M. L. Friedland, Prospective and Retrospective Judicial Lawmaking, 24 The University of Toronto Law Journal 170-190.
  4. Brian F. Fitzgerald, When Should Unconstitutionality Mean ‘Void ab Initio’?, 1 Canberra L. Rev. 205 (1994). 

International

1. UNCITRAL’s Draft Provision 12: Balancing the ‘Right to Regulate’ and Public Interest Carve-Out

Clause 12(3) of the draft provision under the “Draft Provisions on Procedural and Cross-cutting Issues” by the UN Commission on International Trade Law stands out by offering a substantial exception from the dispute resolution process. The Draft Provision 12 deals with the Right to Regulate and clause 12(3) provides a notable exemption from the usual dispute resolution process for actions taken to protect public interests like health, safety, environment, and culture.

This exemption extends to compliance with international agreements such as the Paris Agreement and the UN Framework Convention on Climate Change, which deviates from standard International Investment Agreement (IIA) provisions.  However, the broad applicability of Clause 12(3) may encounter resistance from certain states. This underscores the need to establish procedural mechanisms for determining its scope and to prevent Investor-State Dispute Settlement (ISDS) tribunals from getting involved in contentious policy matters.

Draft Provision 12 introduces innovative elements aimed at alleviating concerns related to regulatory constraints. Its acceptance, however, may face challenges, sparking essential discussions on broader IIA reform within the mandate of UNCITRAL Working Group III.

Suggested readings:

  1. Click here for the “Draft Provisions on Procedural Cross-Cutting Issues”
  2. Joshua Paine and Elizabeth Sheargold, Shoehorning Substance into a Procedural Mandate? The Right to Regulate and UNCITRAL Working Group III, Eᴊɪʟ Tᴀʟᴋ (Sept. 13, 2023) https://www.ejiltalk.org/shoehorning-substance-into-a-procedural-mandate-the-right-to-regulate-and-uncitral-working-group-iii/#:~:text=At%20UNCITRAL%20Working%20Group%20III’s%20first%20session%20in%20December%202017,1%2C%20%5B20%5D.
  3. Uɴɪᴛᴇᴅ Nᴀᴛɪᴏɴs Cᴏᴍᴍɪssɪᴏɴ ᴏɴ Iɴᴛᴇʀɴᴀᴛɪᴏɴᴀʟ Tʀᴀᴅᴇ Lᴀᴡ, https://uncitral.un.org/en/working_groups/3/investor-state (Sept. 15, 2023).
  4. Fahira Brodlija, The Draft Code of Conduct for Adjudicators in International Investment Disputes: Low-Hanging Fruit or Just an Appetizer?, Kʟᴜᴡᴇʀ Aʀʙɪᴛʀᴀᴛɪᴏɴ (Sept. 14, 2023), https://arbitrationblog.kluwerarbitration.com/2023/06/07/the-draft-code-of-conduct-for-adjudicators-in-international-investment-disputes-low-hanging-fruit-or-just-an-appetizer/.

2. ICJ Rules that States cannot Extend Their Continental Shifts within 200 Nautical Miles of Another State’s Baselines

The International Court of Justice (‘ICJ’), led by President Joan E. Donoghue, issued a ruling on July 13 in the Nicaragua-Colombia maritime boundary dispute. Nicaragua had sought to expand its continental shelf beyond 200 nautical miles from its baseline, which led to a legal conflict with Colombia. The ICJ addressed two fundamental issues. First, whether a state can claim a continental shelf within 200 nautical miles of another state’s baselines. Second, the criteria governing the extension of the continental shelf beyond 200 nautical miles under customary international law. The ICJ answered the first question in the negative, asserting that customary international law does not permit a state to extend its continental shelf within 200 nautical miles of another state’s baselines. Consequently, the Court did not proceed to address the second question or support Nicaragua’s arguments regarding the delimitation of the continental shelf.

Several judges expressed dissenting opinions, highlighting procedural concerns and disagreeing with the Court’s decisions. Many coastal states do not include scientific information within 200 nautical miles of other states for several reasons. One major reason is the objection process established by the Commission on the Limits of the Continental Shelf (‘CLCS’). This process allows states to block the consideration of a submission if there is a dispute, which has caused some submissions to remain unresolved. Additionally, the CLCS takes a long time to consider submissions, so some states prefer to exclude information within 200 nautical miles to prevent objections and delays. Moreover, conducting marine scientific research within 200 nautical miles requires the consent of the coastal state, making it harder to gather data for a submission. It raises a question of whether states exclude this information because they feel obligated to do so or because they have strategic reasons. The CLCS submission procedure is unique in the field of international law, and deriving customary international law from it without adequate explanation is unexpected. Judges emphasised on these procedural deficiencies and abnormalities affecting the Court’s substantive findings.

The ICJ’s decision in the Nicaragua-Colombia maritime boundary dispute clarified customary international law concerning continental shelf entitlements and their limitations. While the majority rejected Nicaragua’s claims, the dissenting opinions raised concerns about procedures and provided alternative legal interpretations. This ruling holds significant implications for maritime disputes and international law.

Suggested readings:

  1. Click here for the judgement.
  2. Yurika Ishii, Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicar. v. Colom.), Judgment (I.C.J.), 62 Int’l Leg. Mat. 1–73 (2023).
  3. Hilde Woker, Preliminary reflections on the ICJ Judgment in Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia) of 13 July 2023, Eᴊɪʟ Tᴀʟᴋ (Sept. 14, 2023) https://www.ejiltalk.org/preliminary-reflections-on-the-icj-judgment-in-question-of-the-delimitation-of-the-continental-shelf-between-nicaragua-and-colombia-beyond-200-nautical-miles-from-the-nicaraguan-coast-nicaragua-v-co/.

3. Australia to refer to West Bank and Gaza as “Occupied Palestinian Territories”

Penny Wong, Australia’s foreign minister, announced on August 8th, 2023, that Australia will use the term “Occupied Palestinian Territories” (OPT) to refer to the West Bank and Gaza and the term “illegal settlements” to refer to Israeli civil residences in the aforementioned territories. The position adopted by Australia aligns with UN Security Council resolutions and the approach taken by the European Union, the United Kingdom, and New Zealand, while putting them at odds with the United States. Wong also reaffirmed Australia’s commitment to negotiating a two-state solution in which Israel and a future Palestinian State coexist. Palestine is currently recognized as a nation by 138 countries –  and Australia isn’t one among them.

The U.S Department of State uses the term ‘Palestine Territories’, however, they used to employ ‘occupied’ to describe the status of the territories until 2017, when they were directed to do otherwise by the then U.S ambassador to Israel, David Friedman. The UK used the term “Occupied Palestinian Territories”in its most recent travel advice, updated in July 2023, and New Zealand used the term in a March 2023 statement to the 52nd Session of the UN Human Rights Council.The European Union (EU) also uses the term ‘occupied’ to refer to the Palestinian Territories. 

Suggested readings:

  1. Eugene Kontorovich, Israel/Palestine — The ICC’s Uncharted Territory,  11 Journal of International Criminal Justice 979 (2015). 
  2. Sanford R. Silverberg, Diplomatic Recognition of States in Statu Nascendi: The Case of Palestine, 6 Tulsa J. Comp. & Int’l L. 1 (1998). 
  3. Orna Ben-Naftali, Aeyal M. Gross & Keren Michaeli, Illegal Occupation: Framing the Occupied Palestinian Territory, 23 Berkeley J. Int’l L. 551 (2005). 
  4. Joshua Freedman, The Recognition Dilemma: Negotiating Identity in the Israeli–Palestinian Conflict, 65 International Studies Quarterly 122 (2021). 

4. The Northern Ireland Troubles (Legacy and Reconciliation) Bill, 2023 awaits Royal Assent  

The years of 1968 to 1998, now christened as the “Troubles”, saw continued conflict amongst the Protestant unionists, who desired the retention of the status – quo as to the independence of Ireland against the Roman Catholic nationalists who had separationist desires. It was a watershed moment in the global characterisation of the Irish Republican Army (IRA) as an incendiary organisation engaging in a guerilla war for national independence. Despite being termed as a “low-intensity conflict”, it resulted in the death of more than 3600 people, injuring more than 30000, with many more being subject to unlawful violence and cruelty. 

The 2023 Bill has run into a huge controversy, with the Republic of Ireland publicly opposing the Bill and exploring legal options to challenge the same. It also threatens to disrupt the peace brought in by the Good Friday Agreement after 30 years of bloody civil war.

The 2023 Bill in question primarily offers conditional amnesty (immunity from prosecution and punishment upon full disclosure by perpetrators of the details of their wrongdoings) to those accused of the killings, provided they cooperate with the investigation process. The Bill transfers inquest cases and criminal probes with a branch service of the Police Service of Northern Ireland (‘PSNI’) to the Independent Commission for Reconciliation and Information Recovery (‘ICRIR’), which is a new body set up by the government that would be responsible for reviewing deaths and other harmful conduct forming part of the Troubles and publishing its findings. The Commission is expected to have a budget of 250 million pounds and a staff of several hundred people. It is expected to be led by retired judge Sir Declan Morgan. As mentioned earlier, the Bill would also stop investigation into news cases regarding the Troubles era and create a cut-off time for existing investigations, which will be a little more than six months. The Bill also calls on the UK Government to appoint people to lead a number of efforts to commemorate the Troubles. 

The 2023 Bill is said to have been introduced to deal with “legacy – issues” emerging from the 1000+ unresolved killings during that period. This has been subject to widespread censure from the Irish government, victims’ groups, and political parties at Stormont, each stating that it works with a failed purpose. All the five major parties of Northern Ireland have called upon the Government of the United Kingdom. The Council of Europe, as well as UN experts have also expressed concerns over the effect the Bill would have on the human rights of victims and the prolonged justice efforts. Along with these organisations, many NGOs and think tanks have opposed the Bill. The main ground for opposition is that the Bill violates articles of the European Commission of Human Rights (‘ECHR’) enshrined into Irish Law through the Good Friday Agreement (‘Belfast Agreement’). These include the Right to Life under Article 2, Right to Fair Trial under Article 6 and Right to an Effective Remedy under Article 13 of the ECHR. The Bill, however, is also supported by some organisations and associations like Representatives of the Northern Ireland Veteran Movement. 

The Bill has brought about questions pertaining to dealing with legacy conflicts, where the burden of adjudicating on the crimes befalls generations post conflict who weren’t witnesses to the same and the extent to which ICRIR holds the power to grant reparations, if any, in lieu of its powers to grant amnesty. 

Suggested readings:

  1. Liberty, LIBERTY’S BRIEFING ON THE NORTHERN IRELAND TROUBLES (LEGACY AND RECONCILIATION) BILL FOR SECOND READING IN THE HOUSE OF LORDS (2022), https://www.libertyhumanrights.org.uk/wp-content/uploads/2019/12/Libertys-briefing-on-the-Northern-Ireland-Troubles-Legacy-and-Reconciliation-Bill-second-reading-HoL-Nov-2022.pdf.
  2. Committee on the Administration of Justice, Briefing from the Committee on the Administration of Justice on the Northern Ireland Troubles (Legacy and Reconciliation) Bill House of Lords Report Stage, Government Amendments (2023), https://caj.org.uk/wp-content/uploads/2023/06/Briefing-on-legacy-bill-HoL-report-stage-June-23.pdf. 
  3. Joanna Dawson, Northern Ireland Troubles (Legacy and Reconciliation) Bill 2022-2023 20th May 2022, available at  https://researchbriefings.files.parliament.uk/documents/CBP-9553/CBP-9553.pdf (last visited on Sep. 19, 2023). 
  4. House of Commons and the House of Lords, Legislative Scrutiny: Northern Ireland Troubles (Legacy and Reconciliation) Bill (2022), https://committees.parliament.uk/publications/30491/documents/175903/default/.

5. A shift in the outlook: G20 strives for global improvement

The recently held G20 conference saw the incorporation of green development, inclusive growth and creation of multilateral institutions to the forefront in order to accelerate the progress of developing countries. The 18th summit was held as a two – day meeting on the 9th and 10th September 2023 hosted by the Indian presidency in order to foster formation of global alliances amongst increasing social, political and economic rivalry in the world. 

An interesting aspect of this initiative is the inclusion of sustainable development as a primary goal in the declaration, without a clear plan to scale up financial sources or in directing surpluses directly to these initiatives. Studies show that there exists a unidirectional causality between financial structuring and renewable energy consumption. This sort of funding seems viable as it has shown a corresponding increase of about $6,198 billion in developing countries. But this poses questions about how effectively such funds, collected from developed countries, would be directed to legitimate projects in developing ones. 

Amongst the rapidly developing nations, the focus of the international organisation has turned to the African Union (‘AU’) as it attains permanent membership in light of the growing “Global South”. What it would yield for the industry, but more importantly for the coalition remains to be seen. 

Suggested readings:

  1. Kevin Gray & Barry K. Gills, South-South cooperation and the rise of the Global South, 37 Third World Quarterly 557 (2016).   
  2. EUROPEAN PARLIAMENT RESEARCH SERVICE, Outcome of the 2023 G20 summit in New Delhi, India (2023), https://www.europarl.europa.eu/thinktank/en/document/EPRS_ATA(2023)751474.
  3. Sharinee Jagtiani et al,, The Global South’s New Status-Seeking Platform, Giga Focus Global 7 (2022).  
  4. G20 SECRETARIAT NEWSLETTER, G20 Leaders’ Summit – Policy Recommendations Newsletter, https://www.g20.org/content/dam/gtwenty/gtwenty_new/document/G20_POLICY_RECOMMENDATIONS.pdf (last visited Sept. 18, 2023). 

6. Parliament of Ghana votes to abolish Death Penalty

The move comes three decades after the last death sentence, which was carried out in Ghana. Under the Criminal Offences Act, 1960 the Death Penalty could be imposed on people convicted of heinous crimes, including genocide, high treason, and murder carried out either by hanging or by firing squad. The Parliament amended the Criminal Offences Act, 1960 which contained the provision for the Death Penalty, substituting the Death Penalty for Life Imprisonment for these offences. The President of Ghana, Nana Akufo-Addo, who has formally supported the law, would have to give his assent for the law to come into effect. Even though the Criminal Offences Act, 1960 has been amended, the Constitution of Ghana still has a provision for the death penalty in cases of high treason. The country currently has around 172 men and six women on the death row.

With Ghana abolishing the Death Penalty, the number of African nations doing so has reached 29. Meanwhile, according to the UN, 170 countries have either abolished Death Penalty or introduced a moratorium on Death Penalty. The bill to abolish the Death Penalty was introduced by lawmaker Francis Xavier Kojo Sosu. The Death Penalty Project, a UK-based non-profit organisation, worked closely with Ghanaian lawmakers and interest groups to ban the penalty for all ordinary crimes. It also worked on a similar campaign in Sierra Leone in 2021. The move by the Ghana Parliament has received widespread support, with organisations such as Amnesty International and the International Commission against Death Penalty welcoming the move. 

In 2016, the UN Human Rights Committee recommended that Ghana revise its criminal code to eliminate the imposition of mandatory death sentences. Furthermore, it recommended that Ghana pursue efforts to abolish the Death Penalty entirely, following its obligations under the International Convention on Civil and Political Rights (ICCPR). Thus, by abolishing the Death Penalty, the Parliament of Ghana has also adhered to the recommendation Provided by the UN Human Rights Committee and fulfilled its obligations under ICCPR.

Suggested readings:

  1. Prince Obiri-Korang, Reconsidering the Abolition of Capital Punishment in Ghana: the need for Legislative and Constitutional Amendments, 6 BRATISLAVA LAW REVIEW 107 (2022).
  2. Roger Hood & Carolyn Hole, Abolishing the Death Penalty Worldwide: The Impact of a “New Dynamic”, 38 The University of Chicago Press 1 (2009). 
  3. Kristine Lartey, The Death Penalty in Ghana (Feb. 17, 2005), available at https://www.biicl.org/files/2195_country_report_ghana_lartey.pdf. 
  4. Amnesty International, Locked up and Forgotten: The Need to Abolish Death Penalty in Ghana (2017), https://www.amnesty.org/en/documents/act50/6268/2017/en.

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