India has lost its way in the use of international law

Source: The post is based on the article “India has lost its way in the use of international law” published in The Hindu on 13^th September 2022.

Syllabus: GS 2 – Foreign policy of India.

Relevance: About International law and India’s participation.

News: India’s Constitution makers saw the value of international law. Article 51 of the Constitution states that the state shall foster respect for international law. But now the Indian policy-makers rarely employ the international law vocabulary.

About India’s participation in international law

Ever since India’s independence, India asserted its sovereignty and championed the principle of self-determination in international law. India played a key role in organising the first Asian-African Conference at Bandung in 1955, proclaiming that colonialism should “speedily be brought to an end”.

India has a) Remained committed to the UN Charter and has always advocated the peaceful settlement of international disputes, b) Engaged with international law norms in multiple fields such as human rights, trade, investment, environment, ocean, space, etc. has expanded vastly, c) Played an active role in shaping international law on terrorism by proposing a Comprehensive Convention on International Terrorism (CCIT), and d) Initiated the International Solar Alliance (ISA) to influence international environmental law.

Why India’s low participation in International law is a cause of concern?

Western countries justify their conduct of international relations by embedding them in international law to gain legitimacy for their actions. However, India only makes marginal articulation of India’s national interests internationally.

For instance, a) India’s failure to use the international law vocabulary to call out Chinese transgressions of India’s sovereignty, b) India’s statement as part of the right of reply in September 2021 in the United Nations did not once mention ‘international law’, c) 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,  and d) India’s failed to legally challenge Pakistan’s denial of most favoured nation status to India at the World Trade Organization.

All this resulted in India’s failure to develop and contribute new international law doctrines, interpretations, and principles that suit its national interests.

What are the reasons behind India’s low participation in International law?

This is because 1) India’s foreign service is heavily populated by generalist diplomats, 2) The legal and treaties (L&T) division of the Ministry of External Affairs (MEA) is grossly understaffed. The L&T division has a strength of 13 offices as opposed to an approved strength of 23, 3) Fragmentation of decision-making in international law with the involvement of several Ministries such as finance, commerce, law, environment, etc, and 4) The Government has also failed to fund research in international law. This resulted in India’s abysmal capacity in international law, and 5) 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, 5) Low performance of Indian Society of International Law (ISIL): It was supposed to become a centre of excellence for 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.

What should be done to improve India’s participation in International law?

Fulfil the recommendation of the parliamentary committee: In 2021, the committee recommended that the MEA should establish chairs for research in international law in universities.

India’s ambition of punching above its weight in international affairs cannot be accomplished without its investing in international law. So India should invest in them.