Expert Speak Raisina Debates
Published on Jan 04, 2023 Updated 20 Days ago
India needs to engage in a critical study of international law and utilise it to effectively conduct its foreign policy and engage in lawfare
Incorporating international law in India’s foreign policy Foreign Policy is one of the sine qua non elements of statecraft and international law is one of the most essential tools to conduct it efficiently. Yet, the Indian government in recent years has failed to effectively utilise international law, which can provide legitimacy to its actions and gravity to its statements at international fora. Debate panels are often studded with national security military strategists, international relations scholars, and retired diplomats but international law professionals are rarely seen in such debates despite international law being the fulcrum of international peace and security. It is pertinent to note that India is probably the only country to highlight the importance of international law in its Constitution and to incorporate it as a directive principle to foster respect for international law under Article 51 of the Indian Constitution. In the initial decades after its Independence, India played a pivotal role in the development of modern international law in the post-war years. As an ardent supporter of the UN Charter framework and principle of self-determination, New Delhi played a key role in the process of decolonisation. India’s first Prime Minister Pt. Jawaharlal Nehru, who had a remarkable respect for the principles of international law, established the Indian Society of International Law (ISIL) in 1959.

Numerous eminent international law scholars and practitioners such as  Nagendra Singh—the first Indian to become the president of the International Court of Justice (ICJ)— Justice R.S. Pathak (Indian Judge at ICJ), Professor Upendra Baxi, Sir Philip C. Jessup, Sir Hersch Lauterpacht, Lord McNair served as members and honorary members of the ISIL.

The mandate behind establishing ISIL was to foster advanced research in international law, identify challenges in international law affecting India, and build up strong public opinion on global issues and achieve possible resolutions to such issues with the aid of international legal mechanisms. Numerous eminent international law scholars and practitioners such as  Nagendra Singh—the first Indian to become the president of the International Court of Justice (ICJ)— Justice R.S. Pathak (Indian Judge at ICJ), Professor Upendra Baxi, Sir Philip C. Jessup, Sir Hersch Lauterpacht, Lord McNair served as members and honorary members of the ISIL. However, the ISIL failed to produce desirable results. Unlike its American and Chinese counterparts, the society failed to garner enough credibility when it comes to quality scholarship in international law. The society hardly organises any international conferences and adopts any resolutions. Unlike its American and Chinese counterparts, it rarely releases any reports consistent with and applauding India’s state practice on various facets of international law. For example, after the Permanent Court on Arbitration announced the arbitral award in the South China Sea Arbitration in favour of the Philippines, the Chinese Society of International Law released a 542-page long critical study in favour of the Chinese government’s official position on the South China Sea, even questioning the jurisdiction of the tribunal. Similarly, the American Society of International Law has adopted numerous resolutions endorsing the US position on the use of force against terrorists and so-called rogue states. ISIL urgently needs a revamp. The financial and administrative health of the society must be the topmost priority of reforms. The ISIL should be treated at par with other government think tanks like the MP-IDSA and the India Council of World Affairs (ICWA) when it comes to the devolution of resources. Additionally, adequate rules and bye-laws must be laid down to run the society. Appointments to various posts should be regulated in a manner that only those people who have devoted most of their life to international law should be allowed to hold offices.

The ISIL should be treated at par with other government think tanks like the MP-IDSA and the India Council of World Affairs (ICWA) when it comes to the devolution of resources.

Another reform priority should be adequate documentation of State practice by the Ministry of External Affairs. State practice connotes statements made by Heads of States and governments, ministers, diplomats, and actual practice adopted by a country in a particular circumstance which would reveal the position of that country on a global issue. A group of international law scholars and practitioners have been consistently petitioning the MEA to create a database which would help people in understanding decision-making mechanisms in India and India’s stand on various global issues. This documentation would be immensely helpful for international law scholars who would able to conduct policy interventions through rigorous public consultations in a democratic environment. Although a database is maintained by the Legal & Treaties Division of the MEA regarding the treaties signed and ratified by India, the database is largely inadequate for scholarly purposes. Merely listing down the treaties to which India is signatory will not contribute to any quality research. Documenting state practice would be a win-win situation for the international law scholars and the MEA as well. The MEA generally comprises of diplomats who might not be well-versed with the nuances of international law. Adequate scholarly inputs from international law practitioners and academia will equip the MEA with better weapons to emerge victorious in multilateral conferences on various issues. By documenting state practice in a systematic manner, the MEA can help the international law fraternity in India to make significant contributions in the field of International Law from the perspective of the Global South. Generally, since records of India’s statements and practices are not available, scholars take recourse to excerpts and databases of the Global North to find out what international law says on a given matter. This has led to a situation which could be termed as ‘de-democratisation’ and ‘capitalisation’ of International Law. Evidence of state practice from the Global South on matters of climate change and climate finance, trade and issues relating to use of force and human rights and so on are comparatively less and generally not available in the public domain as compared to the state practice of the Global North. This explains the dominance of the Global North in any debate concerning a global issue be it the IP waiver on COVID-19 vaccine, climate finance or transitional mechanisms for developing and least developed countries. the subject cannot be left to be influenced only by the political and economic ideologies of the Global North. There are numerous global issues that require a communitarian approach for their resolution and the Global South can make significant contributions in this regard. The first step will involve making the state practice available in the public domain. Since India has been a leading voice on issues concerning the Global South, it can take the lead in this regard.

Adequate scholarly inputs from international law practitioners and academia will equip the MEA with better weapons to emerge victorious in multilateral conferences on various issues.

Another course correction that the administration needs to undertake is related to the critical use of international law to support India’s foreign policy and strategic decisions. This needs in-depth knowledge, research and analysis in the discipline of international law. Take, for example, India’s decision to end the import of Iranian oil due to threat of sanctions under the United States sanctioning legislation CAATSA. Countering America’s adversaries through the Sanctions Act provides a framework for imposition of unilateral economic sanctions on any country who enters into a significant transaction with Iran, North Korea, or Russia. Although unilateral economic sanctions may constitute lawful countermeasures when they seek to coerce a state to abide to its international obligations, sanctions which are intrusive in nature violate the principle of non-intervention in the internal or external affairs of any state. The threshold of intervention is satisfied when a state compels another “to change its policy or cause of action, not through influence or persuasion but through threats or imposition of negative consequences.” Superpowers, through their economic might, generally coerce the economically-weaker countries to end their financial relationship with the targeted state. This constitutes an external interference in the foreign or trade policy of the coerced states. This is a flagrant violation of the principles of sovereign equality and strategic autonomy—two fundamental norms of international law. India could have rebutted the threat of imposition of sanctions by the US by highlighting this flagrant violation but it chose to toe the line.

Conclusion

India has been acquiring a central stage in world affairs and international order in the recent years. Besides benefits, this has brought challenges also like the China factor, terrorism in the near neighbourhood, issues relating to carbon emissions and climate compensation and reduced multilateralism. It is probably time for India to engage in a critical study of international law and utilise it to effectively conduct its foreign policy and engage in lawfare. However, the aim should always be the peaceful resolution of disputes as is the core subject of international law.
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