Seventy-five years of India’s Independence is an occasion to not just rejoice in our accomplishments but also to introspect on our failings. While a wide variety of issues have been discussed from this vantage point, an analysis of India’s tryst with international law has not been undertaken.
Despite international law being ruler’s law and its euro-centric character, India did not jettison it at the time of its independence. 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. At the same time, under the leadership of Jawaharlal Nehru, India made it abundantly clear that the emergence of post-colonial States has transmuted the ‘geography’ of international law. India asserted its sovereignty and championed the principle of self-determination in international law including by playing a key role in organising the first Asian-African Conference at Bandung in 1955, proclaiming that colonialism should “speedily be brought to an end”.
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. 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.
Absence of lawfare
Notwithstanding these achievements, India’s engagement with international law has been marginal, especially 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. 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.
This 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.
A major reason for India’s failure to effectively employ the international law vocabulary is that its foreign service is heavily populated by generalist diplomats who are wedded to the theories of international relations. The only section in the Ministry of External Affairs (MEA) that looks at international law is the legal and treaties (L&T) division. But this division is grossly understaffed. As in a 2021 report of the Parliamentary Standing Committee on External Affairs, 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. Adding insult to injury is the fragmentation of decision-making in international law with the involvement of several Ministries such as finance, commerce, law, environment, etc. 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 precious little has been done so far.
Academically, international law has largely remained a neglected discipline in the last 75 years, which explains poor state-capacity in this area. Notwithstanding the presence of a few outstanding international law professors, our universities have not invested much in the development of the discipline. The Government has failed to fund research in international law. 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. 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. China, on the other hand, has poured in massive resources to build the capacity of its universities in international law, which has benefited the Chinese government as well.
The Indian Society of International Law (ISIL), established in 1959, was supposed to become a centre of excellence for research in international law. However, ISIL has failed in producing worthwhile research in international law. Its flagship journal, the Indian Journal of International Law (IJIL), is nowhere close to the top international law journals in the world despite being over 60 years old. In contrast, the Chinese Journal of International Law launched just two decades back, is one of the top-ranked journals in the world. While ISIL organises events on international law, there is a conspicuous drop in quality and rigour.
Unlike in other countries, there is hardly any truck between the international law professors and the Government on pressing international law challenges. International law academicians, on their part, have failed to popularise international law. This is in stark contrast to academicians in international relations and social sciences who write for the masses, not just for specialised audiences.
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.
Prabhash Ranjan is a Professor and Vice Dean, Jindal Global Law School,
O.P. Jindal Global University. The views expressed are personal