India: U.S. religious freedom envoy lacks locus standi

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           Bags packed and travel-sized toothpaste ready to go, a delegation from the U.S. Commission on International Religious Freedom (USCIRF) was denied entry into India just days before its scheduled March 4 departure.[1] With visas and passport stamps from relatively restrictive countries such as Saudi Arabia, Pakistan, and China, the members were taken aback.[2] India’s rationale for denying the visas was that the USCIRF lacked locus standi, or the “capacity to sue and be sued in international adjudication proceedings,” a concept in international law that’s similar to Article III standing in U.S. federal court.[3]

            In response to the visa denial, the USCIRF asserted that “India should have the confidence to allow our visit”, since its goal was to meet and assess the religious freedom conditions in India.[4] USCIRF Chairman Robert P. George further asserted, “One would expect that the Indian government would allow for more transparency than [other] nations, and would welcome the opportunity to convey its views directly to USCIRF.”[5] India quickly responded by pointing to its “vibrant pluralistic society … founded on strong democratic principles” with a constitution guaranteeing freedom of religion to all of its citizens.[6] India also asserted that the denial did not result from any policy change on such visits, as USCIRF’s previous attempts were also denied, but rather was based on India’s inability to “see the locus standi of a foreign entity like USCIRF to pass its judgment and comment on the state of Indian citizens’ constitutionally protected rights.”[7]

Narendra Modi
Narendra Modi (center) is India's prime minister and head of its Bh-
aratiya Janata Party (BJP). The BJP is based in India's majority-Hindu
population and has been criticized for policies that discriminate 
against India's other religious populations,particularly its 180 million 
Muslims. Photo via Wikimedia Commons.

            India’s argument for denying entry to USCIRF is a lack of locus standi, or the right to apply for a court for a remedy, in this instance a court whose judgement would be binding on India such as the International Court of Justice (ICJ).[8] As the ICJ once emphasized, “[i]t is, by its nature, a preliminary condition or presumption for the jurisdiction of the Court or its competence[, and, b]y possessing locus standi, a State automatically recognizes general jurisdiction of the court.”[9] All of that goes to the question of whether the USCIRF has locus standi to, as India said, “pass judgment” on the state of India’s religious freedom or to bring any violations before the ICJ?

            All U.N. members are ipso facto parties to the U.N. provisions on the ICJ.[10] This allows for an inter-state case to be referred to the Court by a member state alleging that another state breached provisions or laws set out by the United Nations.[11] Member states, however, are not the only entities able to refer breaches to the Court; so can “any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the member states of the rights set forth in the Convention or the Protocols thereto.”[12] The one catch is that these methods of referral are available only after all domestic remedies are exhausted.[13] In other words, would the USCIRF have the requisite locus standi to bring an ICJ claim for a violation of freedom of “thought, conscience and religion”?[14]

            As an independent, bipartisan U.S. federal government agency, the USCIRF cannot bring a claim before the Court on its own, so India is partially correct in asserting that the agency lacks locus standi.[15] However, the agency does use “international standards to monitor religious freedom violations globally and makes policy recommendations to the President, the Secretary of State, and Congress.”[16] An annual report by the agency assesses domestic religious freedom recommends countries for designation as “Countries of Particular Concern” due to those countries’ toleration or engagement in “systematic, ongoing, egregious violations of religious freedom.”[17] These assessments and related policy recommendations are used to engage Congress, foreign governments, the United Nations, and various other groups and individuals.[18]

            India is correct that the USCIRF has no inherent right to judge the state of religious freedom within India’s borders, but all of this supports the conclusion that the USCIRF can respond to recent complaints and concerns that “Christians and other minorities in the [Indian] state of Chhattisgarh had suffered badly since 50 village councils had virtually criminalized non-Hindu religious practices; Muslims were suffering ‘vigilante violence’ because of their use of beef, which is banned in Hinduism; and Sikhs were frustrated because their faith was not recognized as a separate religion.”[19] This response or assessment can be used by the USCIRF to alert leadership in the United States and United Nations to violations and then those powers can file a claim in the ICJ to pass judgment upon India’s execution of the religious rights.[20]

            George pledges to “[c]ontinue to pursue a visit to India, given the ongoing reports from religious communities, civil society groups, and NGOs that the conditions for religious freedom in India have been deteriorating since 2014.”[21]



[1] A Squabble Over Religion Between India and America, ECONOMIST (Mar. 10, 2016, 2:21 PM), http://www.economist.com/blogs/erasmus/2016/03/relations-between-great-democracies [https://perma.cc/2HVJ-VY4T]. The commission was created by the International Religious Freedom Act of 1998. Pub. L. 105–292, October 27, 1998, 112 Stat 2787, codified at 22 U.S.C. § 6401 et seq. (2014). The president, speaker of the House of Representatives, and Senate president pro tempore each appoint three members; a tenth is a State Department official. § 6431(b)(1). Its main function is to advise the Executive Branch and Congress on the state of religious freedoms in foreign countries, as its name suggests. See §§ 6432, 6432a.

[2] See id.; see also Press Release, U.S. Commission on Int’l Religious Freedom, India, USCIRF Not Issued Visas (Mar. 3, 2016), http://www.uscirf.gov/news-room/press-releases/india-uscirf-not-issued-visas [https://perma.cc/74KE-NB4W] [hereinafter USCIRF Press Release].

[3] Boleslaw A. Boczek, Int'l L.: A Dictionary 74 (2d ed. 2005).

[4] USCIRF Press Release, supra note 2.

[5] Id. USCIRF has been able to travel to many countries, including Pakistan, Saudi Arabia, Vietnam, China, and Burma, all of which are among the worst violators of religious freedom. Id.

[6] Press Release, Embassy of India, In Response to a Media Query on Visa to USCIRF Visit (Mar. 4, 2016), https://www.indianembassy.org/press_detail.php?nid=2338 [https://perma.cc/K37N-F844] [hereinafter India Press Release]; see Const. of India, arts. 15–16, 25–26, available at http://lawmin.nic.in/olwing/coi/coi-english/coi-4March2016.pdf.

[7] India Press Release, supra note 5. Ms. Lantos Swett replies that the visit's purpose was not to pass judgement but merely to ensure that the commission's advice to the State Department was well-informed. One of the commission's main concerns was several Indian states’ enforcement of laws that bar lower-caste Hindus from converting to Christianity or Islam. A Squabble Over Religion Between India and America, supra note 1.

[8] See BOCZEK, supra note 3 at xxi; see also Case Concerning Legality of Use of Force (Serb. & Montenegro v. Port.), 2004 I.C.J. 1160, 1251 (Dec. 15, 2004), available athttp://www.worldcourts.com/icj/eng/decisions/2004.12.15_use_of_force4.htm [https://perma.cc/89WM-B64U ] (providing an example of a case in which locus standi was at issue); Sebastián A. Green Martínez, Locus Standi Before the International Court of Justice for Violations of the World Heritage Convention, 5 Transn. Dispute Mgt. 4 (2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2356102 [https://perma.cc/H6SP-TGPC] (“Standing (locus standi) is defined as ‘the requirement that a State seeking to enforce the law establishes a sufficient link between itself and the legal rule that forms the subject matter of the enforcement action.’”).

[9] Case Concerning Legality of Use of Force (Serb. & Montenegro v. Port.), at 1251.

[10] U.N. Charter art. 93. By signing the Charter, a U.N. state member pledges to comply with any decision of the Court in a case to which it is a party. Since a case can be submitted to and decided by the Court only if the parties have somehow consented to its jurisdiction, decisions are almost always implemented. A State can complain of an opposing state’s noncompliance with judgment by bringing the matter to the Security Council, which can then decide whether and how to enforce the judgment. How the Court Works, I.C.J., http://www.icj-cij.org/court/index.php?p1=1&p2=6 [https://perma.cc/3W4L-MN9A].

[11] How the Court Works, I.C.J., http://www.icj-cij.org/court/index.php?p1=1&p2=6 [https://perma.cc/3W4L-MN9A].

[12] Id., at art. 34.

[13] Id., at art. 35. These remedies must be exhausted “according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.” Id.

[14] Id., at art. 9. The article reads, in full, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

[15] See id., art. 34.

[16] Who We Are/What We DoU.S. Comm’n Int’l Religious Freedom, http://www.uscirf.gov/about-uscirf/who-we-arewhat-we-do [https://perma.cc/6ZCU-KHRE].

[17] Id.; see Annual ReportU.S. COMM’N INT’L RELIGIOUS FREEDOM, http://www.uscirf.gov/reports-briefs/annual-report (providing links to committee’s annual reports since 2003).

[18] Id. This is done with the goal and idea that: “Inherent in religious freedom is the right to believe or not believe as one’s conscience leads, and live out one’s beliefs openly, peacefully, and without fear. Freedom of religion or belief is an expansive right that includes the freedoms of thought, conscience, expression, association, and assembly. While religious freedom is America’s first freedom, it also is a core human right international law and treaty recognize; a necessary component of U.S. foreign policy and America’s commitment to defending democracy and freedom globally; and a vital element of national security, critical to ensuring a more peaceful, prosperous, and stable world. Id.

[19] See A Squabble Over Religion Between India and America, supra note 1.

[20] See id. (discussing further claims of violations).

[21] USCIRF Press Release, supra note 2.


Posted by John A. Sorenson (Adam) on Sun. March 20, 2016 8:00 PM
Categories: India, Law of foreign and diplomatic relations, Standing, United States

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