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India and international law

Context: India has a long history of respecting international law and committing itself for the welfare of the whole world but the failure to mainstream the lexicon of international law in the diplomatic toolkit has resulted in India’s failure to develop and contribute new international law doctrines, interpretations, and principles that suit its national interests, barring a few initiatives such as the CCIT and ISA.

Success in the arena of international law

• India’s Constitution makers saw the value of international law and thus provided in Article 51 that the state shall foster respect for international law.
  • Under the leadership of Jawaharlal Nehru, India asserted its sovereignty and championed the principle of self-determination in international law including by playing a key role in organizing the first Asian-African Conference at Bandung in 1955, proclaiming that colonialism should “speedily be brought to an end”.
  • India has played an active role in shaping international law on terrorism by proposing a Comprehensive Convention on International Terrorism (CCIT), and recently initiated the International Solar Alliance (ISA), a bold attempt to influence international environmental law.
  • Since those days, India has remained steadfastly committed to the UN Charter and has always advocated the peaceful settlement of international disputes.
  • Over the years, India’s engagement with international law norms in multiple fields such as human rights, trade, investment, environment, ocean, space, etc. has expanded vastly.

Has India lost its way?

Failure in articulating its national interests internationally. 

• Unlike their western counterparts who justify the conduct of international relations by embedding it in the language of international law to gain legitimacy for their actions, India’s generalist diplomats and policy-makers rarely employ the international law vocabulary extensively.
• The most obvious example of this is India’s failure to use the international law vocabulary to call out Chinese transgressions of India’s sovereignty.
• A similar pattern emerges in India’s dealing with Pakistan. An important example is India’s statement as part of the right of reply in September 2021 in the United Nations.
• In this statement, India rightly rubbished Pakistan’s falsehoods against India on the issue of Kashmir and made a case of Pakistan sponsoring terrorism but strangely, the Indian statement did not once mention ‘international law’, forget citing Pakistan’s specific breaches of the treaty and customary international law.
• Barring a few instances such as suing Pakistan at the International Court of Justice in the Kulbhushan Jadhav case, India has not used international courts to hold Pakistan accountable for its breach of international law.
• The most striking example is India’s failure to legally challenge Pakistan’s denial of most favoured nation status to India at the World Trade Organization.

Reasons for the Failure

1.Institutional bottlenecks

• The legal and treaties (L&T) division of the Ministry of External Affairs (MEA) which looks at international law is grossly understaffed. According to the Parliamentary Standing Committee on External Affairs report, the L&T division has a strength of 13 offices as opposed to an approved strength of 23.
• Furthermore, one is unsure of the quality of talent that the L&T division is able to attract because there are far greater incentives for an international lawyer to join the government as a generalist diplomat than as a technocrat.

2.The fragmentation of decision-making in international law

• Several Ministries such as finance, commerce, law, environment, etc are involved in dealing with different facets of international law.
• To overcome the fragmentation-related problems, a parliamentary committee report in 2016 recommended the creation of a ‘department of international law’ under the Law Ministry but little has been done so far.

3. Academic obstructions 

• Academically, international law has largely remained a neglected discipline in the last 75 years, which explains poor state-capacity in this area.
• Our universities have not invested much in the development of the discipline.
• The Government has failed to fund research in international law.
• The MEA funds research centres such as the Indian Council of World Affairs (ICWA). But the ICWA focuses largely on the study of international relations, not international law.

Way forward

• To overcome the fragmentation-related problems, a parliamentary committee report in 2016 recommended the creation of a ‘department of international law’ under the Law Ministry.
• Realising India’s abysmal capacity in international law, the report of the parliamentary committee in 2021 recommended that the MEA establish chairs for research in international law in universities.
• Steps should be taken for the realisation of both the recommendations

India’s ambition of punching above its weight in international affairs cannot be accomplished without its investing in international law. Let us hope that those who sit in South Block act expeditiously.