The Right to a Remedy for Enforced Disappearances in India: A Legal Analysis of International and Domestic Law Relating to Victims of Enforced Disappearances

International Human Rights Law Clinic, Working Paper Series No. 1

96 Pages Posted: 29 Jun 2016

See all articles by Laurel E. Fletcher

Laurel E. Fletcher

University of California, Berkeley - School of Law

Date Written: April 1, 2014

Abstract

The practice of enforced disappearance has reached a global scale, and India is not immune to this human rights violation. Individuals and communities in several Indian states have been targeted for enforced disappearance and suffered injury as a consequence. Simultaneously, international law continues to develop norms to prevent, prohibit, and redress enforced disappearances. As a sovereign state in a global context, India has assumed some, but not all, of these international legal obligations. In order to assist advocates in developing strategies to promote redress for the victims of enforced disappearance, including women placed in the precarious position of losing their family breadwinners, this paper analyzes the international law applicable to enforced disappearances, examines Indian law in light of these international standards, and points to areas where advocates can use international legal standards to argue for reforms to Indian law and policy.

This paper proceeds in eight parts. First, it places enforced disappearances in its historical context. Second, it discusses the development of the International Convention for the Protection of All Persons from Enforced Disappearance, a recent treaty that significantly shapes modern international law on enforced disappearances. Third, it examines the international human rights framework for enforced disappearances in India. Fourth, it discusses India’s obligations under international humanitarian law, specialized law that applies during times of armed conflict. Fifth, it reviews the relationship between international human rights law and international humanitarian law, and explores the applicability of these bodies of law to enforced disappearances. Sixth, it examines the international right to a remedy and the various forms that remedies may take. Seventh, it analyzes Indian domestic law against the backdrop of India’s international legal obligations. This analysis offers Indian activists guidance in considering the role that international norms may play in developing an advocacy strategy to promote redress for victims of enforced disappearances and torture. Part eight concludes.

This Working Paper was prepared by students in the International Human Rights Law Clinic under the supervision of Laurel E. Fletcher. Angana Chatterji, Co-Chair of for the Project on Armed Conflict Resolution and People's Rights (ACRes), Center for Social Sector Leadership, Haas School of Business at the University of California, Berkeley and Mallika Kaur, Director of Programs, ACRes provided helpful comments. Clinical Fellow Katrina Natale ’15 gave invaluable editorial assistance. We thank Olivia Layug, Associate Administrator for Berkeley Law’s clinical program for her help with production.

Note: This Working Paper was prepared by students in the International Human Rights Law Clinic under the supervision of Laurel E. Fletcher, Clinical Professor of Law and Director, International Human Rights Law Clinic for the Project on Armed Conflict Resolution and People's Rights (ACRes), Center for Social Sector Leadership, Haas School of Business at the University of California, Berkeley. Angana Chatterji, Co-Chair of ACRes and Mallika Kaur, Director of Programs, ACRes provided helpful comments. Clinical Fellow Katrina Natale ’15 gave invaluable editorial assistance. We thank Olivia Layug, Associate Administrator for Berkeley Law’s clinical program for her help with production.

Keywords: Human rights, enforced disappearances, India

Suggested Citation

Fletcher, Laurel E., The Right to a Remedy for Enforced Disappearances in India: A Legal Analysis of International and Domestic Law Relating to Victims of Enforced Disappearances (April 1, 2014). International Human Rights Law Clinic, Working Paper Series No. 1, Available at SSRN: https://ssrn.com/abstract=2758955 or http://dx.doi.org/10.2139/ssrn.2758955

Laurel E. Fletcher (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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