It’s time to engage in ‘lawfare’

News: India has failed to utilise the international law to advance its national security interests.  

International laws cover wide array of security issues ranging from terrorism to maritime security. For example, Article 1(1) of the UN Charter recognizes the maintenance of “international peace and security” as a principal objective of the UN. However, India has not been able to fully utilize international law to advance its national security interest.  

What are the examples of non-usage of international laws in India? 

First, after Pulwama attack of February 2019 by a Pakistan-based terror outfit, India struck the terror camps in Pakistan. However, in its justification for this action, India did not invoke the right to self-defense, rather, it relied on a contested doctrine of ‘non-military pre-emptive action’.  

Second, as per General Agreements on Tariffs and Trade (GATT), countries can deviate from their MFN obligations on grounds of national security. But India did not use this provision for suspending the most favored nation (MFN) status of Pakistan after Pulwama. Instead, India increased the customs duties on all Pakistani products to 200% under Customs Tariff Act, 1975.  

Third, India wants to deport Rohingya refugees, as they pose a security threat. But the justification for this action is being given that India is not a signatory to the Refugee Convention, whereas, India is bound by the principle of non-refoulment to not deport them. National security is one of the exceptions to the non-refoulment principle in international refugee law, which is not used as a justification yet.  

However, there are also instances, like Kulbhushan Jadhav case and pushing for international law to counter terrorism, where India has utilised international laws effectively.  

Why India is lagging behind in ‘lawfare’? 

Lawfare means using law as a weapon of national security.  

First, International lawyers are marginally involved in foreign policymaking. Legal and Treaties Division of the Ministry of External Affairs is understaffed and also ignored in policy making. This division was formed to advice government on international law matters.  

Second, ministries like Commerce and Finance with negligible expertise in international law, also deal with different facets of international law.  

Third, Institutions created to undertake cutting-edge research in international law are suffering from low research quality and neglect. 

Fourth, many of the outstanding international law scholars have failed to international law among the larger public.  

Source: This post is based on the article “It’s time to engage in ‘lawfare” published in The Hindu on 9th November 2021.