India has lost its way in the use of international law
Introduction:
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.
International law:
International law, is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for states across a broad range of domains, including war, diplomacy, economic relations, and human rights.
Sources of international law include:
- international custom (general state practice accepted as law)
- treaties
- general principles of law recognized by most national legal systems.
- International comity: the practices and customs adopted by states to maintain good relations and mutual recognition, such as saluting the flag of a foreign ship or enforcing a foreign legal judgment.
- International law differs from state-based legal systems in that it is primarily—though not exclusively—applicable to countries, rather than to individuals, and operates largely through consent, since there is no universally accepted authority to enforce it upon sovereign states.
- Consequently, states may choose to not abide by international law, and even to break a treaty. However, such violations, particularly of customary international law and peremptory norms (jus cogens), can be met with disapproval by others and in some cases coercive action (ranging from diplomatic and economic sanctions to war).
International law and India :
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 for it in in Article 51
| Article 51 of Indian Constitution: Promotion of international peace and security The State shall endeavour to :(a) promote international peace and security;(b) maintain just and honourable relations between nations;(c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and encourage settlement of international disputes by arbitration. |
- 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 (LAC clashes of 2020).
- 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.
- For example, India failed to legally challenge Pakistan’s denial of most favoured nation (MFN) status to India at the World Trade Organization (WTO).
Institutional bottlenecks
- 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.
- One is also 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.
Academic obstructions
- 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 a parliamentary committee in 2021 recommended that the MEA establish chairs for research in international law in universities.
- 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. 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.
Conclusion:
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.
Great G20 power, great responsibility
Context:
- September is a hectic month in India’s diplomatic calendar. In first week of September, a ‘Senior Officers Meeting’ was held of the Quad, which comprises India, Australia, Japan, and the U.S.
- In second week of September, External Affairs Ministers and Defence Ministers of India and Japan held the second India-Japan ‘2+2’ Meeting in Tokyo to take forward strategic cooperation in areas such as joint exercises, defence manufacturing and emerging technologies.
- In third week of September, the Prime Minister is scheduled to attend the meeting of the Council of Heads of State of the Shanghai Cooperation Organization (SCO) in Samarkand in Uzbekistan. This will be the first in-person summit of the SCO since the COVID-19 pandemic.
- This visit will be watched closely by the West and by India’s Quad partners for India’s engagement with Russian President Vladimir Putin, as the Russian war in Ukraine has completed more than six months.
- This will also be the first time that Mr. Modi will be meeting Chinese President Xi Jinping face to face, since the transgressions of the People’s Liberation Army at the Line of Actual Control (LAC) began in April 2020. The Indian government has said India and China will take up remaining issues along the LAC when the disengagement at Patrolling Point 15 in Gogra-Hot Springs is completed.
- India will be assuming rotational presidency of the SCO at the end of the Samarkand summit and will hold it for a year until September 2023. It will host the SCO summit next year.
- It will also preside as President of the United Nations Security Council (UNSC) for December 2022.
Presidency of G20: In November, the 17th G20 Heads of State and Government Summit will take place in Bali. After Indonesia, India will assume the presidency of the G20 from December 1, 2022 to November 30, 2023.
Significance of Indian Presidency of G 20 :
- By hosting the summit of the G20, the world’s most influential economic multilateral forum, India will have the opportunity to assume centre stage in proposing and setting the global agenda and discourse.
- The G20 holds a strategic role in securing global economic growth and prosperity. Together, its members represent more than 80% of the world’s GDP, 75% of international trade and 60% of the world’s population.
About G-20:
Group of 20 (G-20) is a global grouping of countries with the largest and fastest-growing economies. It is an informal group of 19 countries and the European Union, with representatives of the International Monetary Fund and the World Bank as well.
Members of the G20 :
Argentina, Australia, Brazil, Canada, China, France, Germany, India, Indonesia, Italy, Japan, Republic of Korea, Mexico, Russia, Saudi Arabia, South Africa, Turkey, the United Kingdom, the United States, and the European Union.
Working of G-20 summits:
- To help prepare these summits, the G20 finance ministers and central bank governors continue to meet on their own twice a year.
- Each G20 country is represented by its Sherpa; who plans, guides, implements, etc. on behalf of the leader of their respective country.
- The Sherpa track focuses on broader issues such as political engagement, anti-corruption, development, energy, etc.
Concerns on the upcoming G-20 summit:
1. Too many agendas:
Ministry of External Affairs has said that in next year’s summit, to be held here, India will strengthen international support for priorities of vital importance to developing countries in diverse social and economic sectors, ranging from energy, agriculture, trade, digital economy, health and environment to employment, tourism, anti-corruption and women empowerment, including in focus areas that impact the most vulnerable and disadvantaged.
However, having so many different agendas dilutes our priority. Without specificity, India has lost a chance to nudge the G20 and regional organisations towards its focus areas.
2. Multilateral commitments on aid and trade are faltering:
Governance in a world that is steadily becoming more equal needs institutional innovation. This is because the role of the United Nations and the World Trade Organization in securing cooperation between donor and recipient country groups is losing centrality.
There are now three socio-economic systems — the G7, China-Russia, and India and the others — and they will jointly set the global agenda.
3. Recent developments in international affairs:
Russia- Ukraine war and trade wars between U.S. and China puts question mark on the nature and form of collaboration from the G20.
Challenges to G 20 group and role of India:
In a world affected by the pandemic and the Ukraine conflict, the rise of an assertive China, economic challenges such as stagflation, terrorism, and climate change, to name a few, it needs to be seen what role India can play under its watch as President of the G20.
To begin with, India can take cues from Indonesia’s presidency and observe how it is managing the group which is deeply divided on various issues. Indonesia has focused on three key pillars:
- global health architecture
- sustainable energy transition, and
- digital transformation.
India can assert its political, economic and intellectual leadership while hosting the G20 presidency. But it will have to perform a delicate balancing act. On the one hand, we have the West, the North Atlantic Treaty Organization, and G7 partner nations setting the agenda. And on the other, we have an emerging nexus between China and Russia, which are taking divergent views from the first group.
India might be caught in the middle as it is part of both the Quad and the SCO which somewhat lie on the opposing sides of the geopolitical spectrum. So, India might have to address issues that help in bridging the emerging divide in the world order.
Notwithstanding the noise and opposing views at this forum, India can find a common ground for setting its G20 agenda by addressing issues of global concern.
Simultaneously, it needs to promote its specific priorities related to domestic and regional issues such as
- Post COVID-19 economic recovery
- trade and investment
- Poverty and unemployment
- patent waivers on diagnostics, therapeutics, vaccines to tackle COVID-19
- Terrorism and regional instability in Middle East, Afghanistan and Africa
- Charting a road map for quick global economic recovery
- Supply chain resilience mechanism
- Green and digital transformations in the economy and its impact on societal well-being
- sustainable and inclusive growth for the global economy
- Attaining SDGs
Way forward: Rejuvenating the G-20:
Following measures are suggested:
- India should seek collaboration on limited focus areas around science and technology, building on resolutions of the United Nations General Assembly (UNGA) and other multilateral bodies.
- The presumed equality that we are all in the same boat, recognised in the case of climate change, needs to be expanded to other areas with a global impact redefining ‘common concerns’. Emerging economies are no longer to be considered the source of problems needing external solutions but source of solutions to shared problems.
- 2030 Agenda for Sustainable Development: Ensuring adequate food, housing, education, health, water and sanitation and work for all should guide international cooperation.
- Principles of common but differentiated responsibilities (CBDR) for improving the quality of life of all households can guide deliberations in global fora.
- Harnessing the potential of the digital information and communication technology (ICT) revolution requires redefining digital access as a “universal service” that goes beyond physical connectivity to sharing specific opportunities available. Open access software should be offered for more cost-effective service delivery options, good governance and sustainable development.
- Space is the next frontier for finding solutions to problems of natural resource management. Analysing Earth observation data will require regional and international collaboration through existing centres which have massive computing capacities, machine learning and artificial intelligence.
- Public health has to learn from the COVID-19 fiasco with infectious diseases representing a market failure. A major global challenge is the rapidly growing antimicrobial resistance which needs new antibiotics and collaboration between existing biotechnology facilities.
- Strategic thinking: overriding priority to development suggests avoiding strategic competition.
Bridging the North- South divide:
- G20 is a unique global institution, where developed and developing countries have equal stature. It offers India an opportunity to also champion the causes of developing and least developed countries so as to ensure that this summit does not turn out to be a western-dominated high table gathering or one where large economies impose their aspirations on the world.
- India could invite and engage countries from Africa and South America to ensure better and more balanced representation at the G20.
- Areas such as technology transfer, assistance towards green economy, greater access to trade for developing countries, addressing debt distress of countries by offering sustainable aid and loan programmes, tackling food and energy prices/security for vulnerable economies etc. could be relevant.
Conclusion:
- The G- 20 plays an important role in shaping and strengthening global architecture and governance on all major international socio- economic issues. We must craft new approaches to overcome the acute global discord and rejuvenate this grouping.
- The coming months will be a testing time for Indian foreign policy and diplomacy as the country prepares to host the G20 and SCO summits next year. On its 75th year of independence, India could start charting a meaningful agenda and contribute towards the international community. Its role towards either brokering or breaking deals could define the coming years and decades of global discourse and avenues of cooperation.
