Unlike the West, India’s generalist diplomats and policy-makers rarely use international law terminology extensively.
Unlike the West, India’s generalist diplomats and policy-makers rarely use international law terminology extensively.
Seventy-five years of India’s independence is an occasion not only to rejoice at its achievements but also to introspect on its failures. Although a variety of issues have been discussed from this vantage point, India’s effort with international law has not been analyzed.
Despite international law being the ruler’s law and its Euro-centric character, India did not discontinue it at the time of its independence. The framers of the Constitution of India saw the value of International Law and thus Article 51 provided that the State shall promote respect for International Law. Also, under Jawaharlal Nehru’s leadership, India made it abundantly clear that the rise of post-colonial states had changed the ‘geography’ of international law. India asserted its sovereignty and supported the principle of self-determination in international law, being instrumental in organizing the first Asian-African Conference in Bandung in 1955, declaring that colonialism “must be swiftly ended” “.
Since those days, India has remained firmly committed to the United Nations Charter and has always advocated peaceful settlement of international disputes. In the past few years, India’s participation in many areas like human rights, trade, investment, environment, oceans, space etc. has expanded significantly with the norms of international law. India has played an active role in shaping international law on terrorism by proposing a Comprehensive Convention on International Terrorism (CCIT), and most recently initiated the International Solar Alliance (ISA), which seeks to influence international environmental law. It is a bold endeavor.
lack of law
Despite these achievements, India’s engagement with international law has been modest, particularly in articulating its national interests at the international level. Unlike their Western counterparts, who justify the conduct of international relations by embedding them in the language of international law to gain legitimacy for their actions, India’s generalist diplomats and policy-makers rarely broaden international law terminology. employ. The most obvious example of this is India’s failure to use international law terminology to invoke Chinese violations of India’s sovereignty.
A similar pattern emerges in India’s dealings with Pakistan. A striking example is India’s statement at the United Nations in September 2021 as part of the Right to Answer. In this statement, India justified Pakistan’s lies against India on the issue of Kashmir and made a case of Pakistan sponsoring terrorism. Oddly, the Indian statement did not once mention ‘international law’, citing Pakistan’s specific violations of the treaty and customary international law. India has not used international courts to hold Pakistan accountable for violations of international law, except in a few instances, such as the trial of Pakistan at the International Court of Justice in the Kulbhushan Jadhav case. The most striking example is India’s failure to legally challenge Pakistan’s refusal to accord most favored nation status to India in the WTO.
As a result of this failure to mainstream the glossary of international law in the diplomatic toolkit, India has failed to develop and contribute to new international law principles, interpretations and principles consistent with its national interests, barring a few initiatives such as the CCIT and ISA.
institutional constraints
One of the major reasons for India’s failure to effectively employ international law terminology is that it has a large population of generalist diplomats in its foreign service who are engaged in the principles of international relations. The only division of the Ministry of External Affairs (MEA) that deals with international law is the Legal and Treaties (L&T) Division. But there is a huge shortage of staff in this department. As per the 2021 report of the Parliamentary Standing Committee on External Affairs, the L&T division has 13 offices as against the sanctioned strength of 23. Also, unsure about the quality of talent that the L&T division is able to attract. Because there are far more incentives for an international lawyer to join the government as a generalist diplomat than as a technical expert. The refutation of decision making in international law with the involvement of several ministries such as finance, commerce, law, environment etc. dealing with various aspects of international law is to add insult to injury. To address the problems related to fragmentation, a 2016 parliamentary committee report recommended the creation of an ‘International Law Department’ under the Ministry of Law. But precious so far little has been done.
educational barriers
Academically, international law has remained a largely neglected discipline over the past 75 years, which explains the poor state-ability in the region. Despite the presence of some excellent international law professors, our universities have not invested much in the development of the discipline. The government has failed to fund research into international law. Realizing India’s pitiable potential in international law, the parliamentary committee report in 2021 recommended that the MEA establish chairs for research in international law in universities. MEA funds research centers such as the Indian Council of World Affairs (ICWA). But ICWA mainly focuses on the study of international relations and not on international law. China, on the other hand, has used massive resources to build the capacity of its universities in international law, which has also benefited the Chinese government.
The Indian Society of International Law (ISIL), established in 1959, was to become a center of excellence for research in international law. However, ISIL has failed to conduct meaningful research into international law. Its flagship magazine Indian Journal of International Law (IJIL), despite being over 60 years old, is nowhere close to the top international law journals in the world. opposite of this, Chinese Journal of International Law Launched just two decades ago, is one of the top ranked magazines in the world. While ISIL conducts programs on international law, there is a marked decline in quality and rigor.
Unlike in other countries, there is hardly a truck between international law professors and the government on pressing international law challenges. International law academics, on their part, have failed to popularize international law. This is in stark contrast to academics in international relations and the social sciences, who write not just for a specific audience, but for the public.
India’s ambition to punch above its weight in international affairs cannot be fulfilled without investment in international law. Hope those sitting in South Block take action soon.
Prabhas Ranjan is a Professor and Vice Dean, Jindal Global Law School, OP Jindal Global University. Views expressed are personal