The annual session of the >Asian-African Legal Consultative Organisation (AALCO), held recently in New Delhi, offered a chance to reflect on a dilemma facing international relations: how should developing countries respond to imminent changes in the global regimes on trade, climate and other “common spaces”? For India, it was an opportunity to examine why its once formidable negotiators have struggled in recent times, characterised as “reactive”, “obstructionist” or worse, “fence-sitters”.
Several Asian, African and Latin American countries — often led by India under blocs such as the G77 — helped create multilateral instruments that exist today. Historical narratives have largely sidestepped the important, outsized role that India, Egypt and Ethiopia played in the creation of the Bretton Woods institutions. Developing countries saw in the creation of multilateral financial regimes an opportunity for inclusive governance. Historian Aditya Mukherjee has noted, for instance, how the Federation of Chambers for Commerce in India (FICCI) passed a resolution in 1945, urging India to boycott the International Monetary Fund (IMF) unless New Delhi was offered a permanent seat on its Executive Board. The negotiating power of developing countries grew with time, culminating in landmark instruments such as the >Rio Declaration on >sustainable development in 1992 and the 1994 >General Agreement on Tariffs and Trade (GATT).
A diplomatic bind Having invested in these regimes, by sending permanent representatives and offering secretarial support, emerging economies now find themselves in a bind. Multilateral diplomacy faces unprecedented strain, both from the global hegemon and the contenders. The U.S. asserts the WTO regime has run its course, crafting the Trans-Pacific Partnership to probe the contours of its successor. Should China refuse to abide by the Permanent Court of Arbitration’s imminent ruling on its South China Sea dispute against the Philippines, Beijing will mount the first serious challenge to the decades-old UN Convention on the Law of the Seas. The Paris climate accord has already upended several principles embedded in the Rio Declaration.
India is especially buffeted by these challenges, because both developed and developing countries expect New Delhi to be on their camp. Just as the U.S. and increasingly the European Union look to India for strategic convergence, Asian and African nations expect Indian leadership at the WTO and UN forums. As a result, New Delhi’s foreign policy decisions have sat awkwardly together: nudged by the U.S., India ratified the Trade Facilitation Agreement, even as it continues to rally developing countries towards the goals of the Doha Round.
AALCO was itself a pillar of the Non-Aligned Movement’s (NAM) multilateral diplomacy. A byproduct of the Bandung Conference in 1955, it was inaugurated by Jawaharlal Nehru. It was set up to assess developments in international law, the flesh and bones of any multilateral instrument. The wave of decolonisation in the the 20th century allowed Asian and African states to participate in treaty-making, but few possessed the capacity. Many hired English and American lawyers to defend their cases before international tribunals. AALCO brought to bear the expertise of veteran diplomats and lawyers on NAM.
Then, India led the way through its skilful navigation of international regimes. K. Krishna Rao helped set up the Legal and Treaties Division in the Ministry of External Affairs to advise ministries and Indian missions abroad. Nehru himself was immersed fully in this space as the founding Patron of the Indian Society of International Law (ISIL). Manfred Lachs, a leading international jurist of the 20th century, recalls from meetings with Nehru his “determination” to shape global regimes. India was ultimately able to sell political principles through instruments of law, evidenced by the spate of UN resolutions on self-determination and non-interference.
That is no longer the case. This is clear from how the government has floundered in its approach towards the TPP and the Regional Comprehensive Economic Partnership. India has so far treated these as transactional agreements meant to elicit the mutual reduction of trade barriers. Their strategic underpinnings are arguably lost on India’s negotiators, most of whom have no prior experience in diplomacy.
How did this situation come to pass? It is not an exaggeration to say that New Delhi, sold by its own rhetoric from the Nehru years, became ideologically anchored to existing regimes. South Block was late to acknowledge that India’s changing strategic and economic interests will necessitate its participation in new regimes. This approach had a ripple effect on research in international law: Indian scholars and universities encouraged a legal, sometimes even moral, defence of existing treaties, ignoring their political contexts.
The bilateral escape A second, more recent factor is that the Indian establishment has placed all its bets on bilateral relations. It is comforting to believe that a special relationship with the U.S. will help India’s case in regimes it’s currently excluded from. As China’s opposition to India’s joining the Nuclear Suppliers Group revealed, reality is more complicated. India’s political and economic profile may be courted by big powers, but bilateral ties are still no substitute for predictable, international regimes. Indian diplomats need only look to the U.S. to learn this: Washington D.C. has told the U.K., its closest ally, in clear terms that it will not negotiate a separate, bilateral free trade agreement should Britain exit the EU.
At AALCO’s annual session, India acknowledged that far from receding, international law is going to have a “deeper” impact on international relations. If India is to be a serious contributor to future regimes, policy planners must aim to build this capacity in the Indian Foreign Service. Institutions of eminence like the Jawaharlal Nehru University and the ISIL should also move beyond the study of multilateral regimes as purely legal instruments and view them through the prism of international politics.
Arun Mohan Sukumar heads the Cyber Initiative at the Observer Research Foundation
