IN THE MATTER OF:

THE SHRIKAILASA NATION

OPINION
GEOFFREY ROBERTSON AO QC

1. I have been asked to provide a short advice as to legal implications of proposed

agreements between sovereign states and an entity representing the Sovereign state of

SHRIKAILASA, in relation to its possible recognition and establishment of an embassy. It

was founded by His Divine Holiness Bhagavan Sri Nithyananda Paramashivam (HDH).

Such states may certainly grant HDH asylum, but I am asked to advise whether the

government can properly accord other rights, similar to those which normally accrue to

representatives of States

2. The first question would be whether the particular government is entitled, under its

constitution, to make such an agreement. This would depend on whether the power to

deal with foreign policy and diplomatic relations is reserved to the President or to a

minister for foreign affairs, and then whether the approval of parliament (assuming a

democratic country) is required. Constitutions differ from state to state in this respect,

and SHRIKAILASA must be sure that the government has the power to accord it any

privileges usually reserved for diplomats. In principle the government would need no

approval from parliament for an agreement with it, although it would require, to enter
 into legal relations, that it do so through any entity that represents SHRIKAILASA which

has legal personality – such as the KAILASH Union.

3. I am instructed that SHRIKAILASA is made up of some 30 million followers of the Hindu

teachings of HDH. I am told that they live mainly in India, Canada, USA, UK, France,

Singapore, Malaysia and Australia. They have established many temples and schools

and have large tracts of donated land in Australia, USA, India and elsewhere.

SHRIKAILASA is essentially a form of Hindu belief and practice, organised and led by

HDH, the heir to a spiritual fellowship dating back many centuries and recognised by

other states in various ways in the past in consequence of the Adi Shaivite Minority

Tradition (ASMT). HDH, who is recognized and worshipped as the Dalai Lama in

Buddhism, has acceded to the throne of these 3 kingdoms and 9 ancient religious

monasteries and has founded his own monastery. It is said that he started this

movement to revive the concept of a Hindu Nation and such a concept gained much

traction amongst the Hindu diaspora. The three kingdoms to which HDH has acceded as

king were sovereign even during the British rule of the Indian subcontinent (so were

many other kingdoms), but were annexed by the Indian Union a few years later.

SHRIKAILASA does not claim these territories, but has inherited their traditions. HDH is

the supreme authority (analogous in this respect to the Pope) and he directs his 30

million followers in the Vedic tradition in lifestyle, temple practices and sciences,

medicine, sacred arts, and so on. His teachings are disseminated by monks in ASMT

temples, meetings and via online social media platforms. It is a religion which claims to

revive Hinduism in its most authentic form.

4. SHRIKAILASA has a constitution and it operates through corporate entities, notably

Kailash Union which is incorporated in the U.S. The members of the community join by

their own volition and are not members by nationality or ethnic descent. The

organisation issues declared members with identity cards/passports and welcomes their

donations to it’s charitable trusts. (They do not donate to HDH, who has no personal

bank account). He, and consequently members of the community, have attracted

hostility for their belief in non-violence, sexual equality, yoga and yogic sciences and so

on, and are often attacked by anti-Hindu mobs stirred up against them by nationalist

and extremist elements. HDH is looking to establish SHRIKAILASA in a safe place which

supports religious freedom in order to continue his philanthropic work.

5. Is SHRIKAILASA a state in international law? This question is sometimes answered by

reference to the 1933 Montevideo Convention on the Rights and Duties of States, which

lays down four qualifications:

a. A permanent population;

b. A defined territory;

c. A government and;

d. A capacity to enter into relationships with other states.

These requirements are not exhaustive – questions of independence and capacity are

also relevant, as is the behaviour of other states in according recognition. However, the

Convention is ratified by only 20 states and the Vatican and the Sovereign Order of

Malta, for example, obviously fall outside it and are more like SHRIKAILASA, which
 although it currently has no control over its ancestral territory, does have a government

and a constitution and capacity to enter into relationships through its corporation or

through the person of HDH himself.

6. SHRIKAILASA may be compared with other religious organisations that have achieved

some state recognition. The Vatican is an obvious example, which has no ‘territory’

other than a palace and gardens in Rome, and no ‘population’ other than clerics: no-one

is born there, except by accident. Its government is the Pope, effectively its King, who

occupies a position similar to that of HDH. Yet for all these deficiencies, it is recognised

as a ‘state’ by 170 countries, and by the UN.

7. Another example of an international entity with even fewer qualifications for statehood

is the Sovereign Order of Malta, which is recognised nonetheless by 108 countries and

has been granted permanent observer status at the UN. It is a Catholic lay religious

order, without land although it has several buildings in Rome that function as embassies

with diplomatic immunities. It has a bilateral treaty with Malta, which makes it subject

to the courts and sovereignty of Malta but which accords it some quasi-diplomatic

privileges and immunities. There is no distinction of principle between Shrikailasa and

the Order of Malta, a catholic order subject in religious matters to the Pope and having

no land or subjects, although it does have a flag and a coat of arms and issues its own

passports, coins and postage stamps (as, without difficulty, could Shrikailasa). It claims

to have only 13,500 members, but thousands more ‘volunteers’ and employees,

engaged in world – wide humanitarian missions on a budget of 1.5 billion Euros,

although this money is supplied by the EU, UN, and catholic foundations.
8. The UN International Covenant on Civil and Political Rights begins by stating that “All

peoples have the right of self-determination. By virtue of that right they freely

determine their political status and freely pursue their economic, social and cultural

development.” (article 1.1). While this does not imply any right of secession where

“peoples” is taken to mean the peoples of a state, article 27 of the ICCPR does protect

minority rights of ethnic communities to enjoy their own religion and lifestyle. The UN

Declaration on the Rights of Indigenous Peoples recognizes “the fundamental

importance of the right to self-determination” (article 3) and a “right to autonomy”

(article 4) and the “right to belong to an indigenous community or nation” (article 9), as

well as “the right to practice cultural traditions and customs” and to “develop and teach

their spiritual and religious traditions, customs and ceremonies” (articles 11 and 12).

Given the 10 thousand year long history of the Vedic/ASMT tradition, and the threat to

its unique culture and people due to recent persecution (about which I have been

supplied with evidence), the UN Declarations above gives some support to the people

of SHRIKAILASA’s claim to be considered an entity in international law and to a collective

right to enter into treaties with other states.

9. The reality, as most scholars accept, is that recognition is less a matter of law than of

politics: states sometimes accord recognition, or withhold recognition, for reasons that

have little to do with the Montevideo criteria. What matters is the sovereign right of a

state to decide which entities it will recognise, and as what. States are sovereign in the

sense they hold supreme power within the state, although that power is allocated by it’s

constitution rather than by international law.

 As Professor Crawford puts it,

“International law leaves the distribution of authority internally to each state. It

regards each state as sovereign, in the sense that it is presumed to have full
authority to act not only internally but at the international level, to make (or not to
make) treaties and other commitments, to relate (or not to relate) to other states in
a wide variety of ways…”

10. So any state may recognise or make agreements or even a treaty with SHRIKAILASA

However, it must do so in accordance with its constitution, which may allocate to the

President the power to negotiate and sign all international treaties and agreements and

require parliamentary approval. Subject to such considerations, SHRIKAILASA may be

accorded privileges akin to those granted to diplomats by the Vienna Convention. They

would not arise under international law, but as a result of a contract between a

SHRIKAILASA corporate entity or even HDH himself, and the government e.g. Immunity

from prosecution might be granted.

11. SHRIKAILASA could, therefore, be granted by agreement with the government rights that

are similar to some of the privileges accorded to representatives of the Vatican and the

Sovereign Order of Malta and other states.

Geoffrey Robertson QC
23 March 2020
 Mr. Geoffrey Robertson QC
Distinguished Jurist on the United Nations Justice Council (2008-12)

Appointments:

● United Nations Internal Justice Council (2008 – 2012)

● Appeal Judge, UN Special Court for Sierra Leone (2002-2007)

Practice:

● Led human rights missions for Amnesty International to South

Africa (1983, 1986), 1988), Vietnam (1989) and for Jan Hus
Foundation to Czechoslovakia (1984, 1987).
● Appearance as leading counsel in over 200 reported cases, many in the European Court
of Human Rights, the House of Lords, the Court of Appeal, the High Court and the Privy
Council, with appearances in the Courts of Appeal of Singapore, Trinidad, the Eastern
Caribbean, Malawi, Florida and appearances in various courts in Australia, New
Zealand, Fiji, Mauritius and Malaysia Anguilla, Antigua and in the Revolutionary Military
Tribunal of Mozambique. ​These cases have usually involved human rights and relate to
international, constitutional and media law​.

Author

● Crimes Against Humanity – The Struggle for Global Justice (Alan Lane, 1999; revised
2000 (Penguin paperback); US edition published by the New Press, 2000; Indonesian
edition, 2001; 3rd edition, 2006 (Penguin and New Press))
● The Inconvenient Genocide: Who Now Remembers the Armenians? (Random House,
2014)
● Mullahs Without Mercy: Human Rights and Nuclear Weapons (Random House, 2012)
● Obscenity (Weidenfeld and Nicolson, 1979)

Prestigious Appointments

● Consultant to Australian Government on defamation law reform (1984)

● Led British Bar and Law Society mission to Malawi (1990)
● Appointed by President of Antigua as Counsel assisting Royal Commission into
gun-running to Medellin Drugs Cartel (1990); in consequence called to assist the U.S.
Senate enquiry into illegal traffic in conventional weapons (1991)
● Retained by Government of Malawi to advise on prosecution of Hastings Banda and
others, and to lead for Crown in Malawi Court of Appeal (1996-7)
● Appointed by Government of Trinidad to draft green paper on Reform of Media Law
(1998)
● Appointed by Government of Mauritius to draft new media laws (1999)
 ● Appointed as counsel to lord Mackay of Clashfern, Inquiry into the Commission into the
Administration of Justice, Trinidad and Tobago (2000)
● Trustee,School of Oriental and African Studies (2016 – present)
● Trustee, Bureau of Investigative Journalism (2015 – present)

Education:

● Sydney University BA, LLB (Hons);

● Honorary Doctor of Laws Oxford University BCL (Rhodes Scholar, 1970)

Professional:

● Admitted as a barrister, Middle Temple, 1973

● Queen's Counsel, 1988
● Founder and Head, Doughty Street Chambers, 1990 – present
● Assistant Recorder, 1993; Recorder, 1999
● Master, Middle Temple, 1998
● Appeal Judge, UN Special Court for Sierra Leone, 2002-2007
● President of Court, December, 2002 – March, 2004
● Distinguished Jurist Member, United Nations Internal Justice Council, 2008-2012

Academic
● Visiting professorships in the past at Universities of Warwick, New South Wales, Queen
Mary College, University of London. Currently visiting professor at New College of the
Humanities.
● Most recent keynote lecture was on the political appointments and judicial independence
at IBA Annual Conference, Rule of Law section (Sydney, October 2017)
● Media law lectures include Bernard Simons Lecture (1997), Kapila Lecture (1997),
Goodman Lecture (1999), World Bank Lecture on media and judiciary (Washington,
2000), Commonwealth Legal Conference (1999, 2003 and 2005), September 11
memorial symposium, University of Connecticut (2004); International Judicial Colloquy,
Stanford University (2005), Keynote address at Cornell Law School symposium,
“Milosevic and Saddam on Trial” (February, 2005) published in Cornell Law Journal
(Issue 3, Volume 5), “Nuremberg : The legend and the legacy”, Jackson Centre /
Fredonia University, New York.