Cecily Zamora
India has been a major contributor to the field of international law, especially in areas such as human rights, environmental law, and trade law. The country has been committed to the UN Charter and has advocated for the peaceful settlement of international disputes. However, India's engagement with international law has been criticized as marginal, with diplomats and policymakers rarely employing the vocabulary of international law to articulate the country's national interests. This has resulted in a failure to effectively challenge breaches of international law by other nations, such as Pakistan, and a lack of contribution to the development of new international law doctrines. Additionally, India has been criticized for not adequately addressing issues such as refugee protection and cybersecurity through domestic laws that align with international norms. While India's Constitution does contain provisions related to international law, the country follows the principle of dualism, meaning that international law does not automatically become part of the domestic legal regime without an act of Parliament. This has led to concerns about a democratic deficit in the judicial incorporation of international law.
| Characteristics | Values |
|---|---|
| Engagement with international law | Marginal |
| Use of international law vocabulary | Rare |
| International law in relation to national interests | Not effectively employed |
| International law education | Underfunded |
| International law in domestic legal regime | Dualism (international law not automatically incorporated into domestic law) |
| Extradition treaties | 50 countries |
| Mutual Legal Assistance Treaties (MLATs) | 40 countries |
| Refugee law | Absent |
| Citizenship Amendment Act (CAA) | Violates international law |
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What You'll Learn
India's marginal engagement with international law
India has been a major contributor to the field of international law, particularly in the areas of human rights laws, environmental laws, arbitration law, and trade law. The country is a party to more than 160 treaties and conventions, including those related to air law, space law, and maritime law. India's constitution and international law have links dating back to the pre-independence days when India was a separate member of the League of Nations during British rule.
Despite these achievements, India's engagement with international law has been described as marginal, particularly in articulating its national interests internationally. Indian diplomats and policymakers rarely employ the vocabulary of international law extensively, unlike their Western counterparts, who often use it to justify their actions in international relations. For example, India has not used international law to explicitly call out Chinese transgressions on its sovereignty or to hold Pakistan accountable for its breach of international law.
India has also faced criticism for its lack of investment in developing the discipline of international law within the country. While there are a few notable international law professors, universities have not prioritized this field of study. The government has been criticized for underfunding research in international law, which has resulted in a lack of capacity and expertise in this area.
However, India has made significant contributions to shaping international law, particularly in the areas of counter-terrorism and environmental law. India proposed the Comprehensive Convention on International Terrorism (CCIT) and initiated the International Solar Alliance (ISA), demonstrating its commitment to peaceful settlement of international disputes and its influence on international environmental law.
In conclusion, while India has made notable contributions to international law in certain areas, there is a perception that its overall engagement could be more robust, particularly in terms of articulating and protecting its national interests on the global stage using the language and mechanisms of international law.
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Lack of international law expertise
India has been a significant contributor to the field of international law, particularly in areas such as human rights laws, environmental laws, arbitration law, and trade law. The country is a party to over 160 treaties and conventions, including those related to air law, space law, and maritime law. Despite these achievements, India's engagement with international law has been criticised as marginal, especially when it comes to articulating its national interests on the global stage.
One of the main reasons for this perceived lack of engagement is the scarcity of expertise in international law among Indian diplomats and policymakers. India's foreign service is predominantly staffed by generalist diplomats, who rarely employ the vocabulary of international law extensively when justifying the conduct of international relations. This stands in contrast to their Western counterparts, who routinely use the language of international law to gain legitimacy for their actions on the world stage.
For instance, India's failure to use international law to explicitly call out Chinese and Pakistani transgressions against India's sovereignty is cited as a notable example of this deficiency. In September 2021, during India's right of reply at the United Nations, the country refuted Pakistan's falsehoods regarding the Kashmir issue and accused Pakistan of sponsoring terrorism. However, the statement notably omitted any reference to 'international law' or specific breaches of treaties and customary international law by Pakistan.
Another illustration of this shortcoming is India's failure to legally challenge Pakistan's denial of Most Favoured Nation status at the World Trade Organization. This reluctance to utilise the lexicon of international law has resulted in India's inability to develop and contribute to new international law doctrines, interpretations, and principles that advance its national interests.
The Indian government has been criticised for not adequately funding research in international law at universities. While there are a handful of exceptional international law professors, the discipline as a whole has not received significant investment. In 2021, a parliamentary committee report acknowledged India's limited capacity in international law and recommended that the Ministry of External Affairs (MEA) establish chairs for research in this field at universities. The MEA primarily funds research centres like the Indian Council of World Affairs (ICWA), which focuses more on international relations than international law.
In conclusion, while India has made notable contributions to international law in certain areas, the country's engagement with international law norms has been criticised as lacking, particularly when it comes to safeguarding its national interests. The scarcity of expertise in international law among diplomats and policymakers has resulted in a failure to utilise the vocabulary and mechanisms of international law to effectively articulate and pursue India's interests on the global stage.
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Absence of a refugee law
India has played a significant role in the field of international law, particularly in areas such as human rights, trade, and environmental law. Despite this, India has been criticised for its marginal engagement with international law when it comes to articulating its national interests. Notably, India has not effectively employed the language of international law to address transgressions against its sovereignty by neighbouring countries such as China and Pakistan.
One specific example of India's failure to utilise international law is its response to Pakistan's denial of Most Favoured Nation status, which deviated from World Trade Organization norms. India's statement at the United Nations in September 2021, which refuted Pakistan's allegations regarding Kashmir, also did not invoke international law or cite Pakistan's breaches of treaties and customary international law.
India's approach to refugee protection further illustrates the complexities of its engagement with international law. Despite not having a national refugee law, India has a long history of accepting refugees from neighbouring countries, including partition refugees from present-day Pakistan and Bangladesh, Tibetan refugees, and more recently, Rohingya refugees from Myanmar. India's refugee policies are shaped by the principles outlined by Jawaharlal Nehru in 1959, which emphasise a humane welcome for refugees.
However, India's lack of a formal refugee law has led to concerns about the adequacy of its domestic laws in addressing refugee-related issues. India is not a signatory to the 1951 United Nations Refugee Convention and its 1967 Protocol, which means that the legal status of refugees in India is similar to that of ordinary aliens under the Foreigners Act of 1946. The absence of a comprehensive legal framework for refugees has resulted in ad hoc systems for managing their status and needs.
To address these gaps, the Indian Supreme Court has relied on international human rights instruments, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, to uphold the government's obligation to protect refugees. Additionally, India has allowed the United Nations High Commissioner for Refugees (UNHCR) to operate programmes for Afghan refugees in the country.
While India's refugee policies have been influenced by humanitarian considerations, national security concerns have also played a role in shaping its approach. The impact of refugee inflows is primarily borne by state administrations, which must balance the enforcement of Indian laws with security considerations. The absence of a dedicated refugee law has resulted in various central and state government agencies managing refugee matters, often on a bilateral basis with neighbouring countries.
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Non-compliance with international courts
India has been a significant contributor to the field of international law, particularly in human rights, environmental, arbitration, and trade law. The country is a party to over 160 treaties and conventions, including those related to air, space, and maritime law. Despite this, India has been criticised for its marginal engagement with international law, especially in articulating its national interests and holding other nations accountable for their breaches.
One notable example is India's failure to utilise international law effectively when addressing Chinese and Pakistani transgressions against Indian sovereignty. India did not invoke international law in its response to Pakistan's falsehoods regarding Kashmir and its sponsorship of terrorism. India also failed to legally challenge Pakistan's denial of Most Favoured Nation status at the World Trade Organization.
Another instance where India did not actively employ international law was in the case of extradition treaties. India has signed extradition treaties with 50 countries and arrangements with 11 others. However, there have been delays in extraditing offenders who take refuge in these countries, and India has not prioritised signing treaties with nations where offenders can easily seek citizenship or residency.
In terms of asylum issues, India is not a signatory to the United Nations' 1951 Convention on the Status of Refugees or the 1967 Protocol. While India believes in the shared responsibility of all countries in refugee crises, it has not effectively advocated for this stand by reviewing and amending these instruments.
Furthermore, India has not adequately invested in developing the discipline of international law within its universities. The government has been criticised for its lack of funding for research in this area, which has resulted in a shortage of experts in international law within the country's foreign service.
While India has demonstrated a commitment to the UN Charter and the peaceful settlement of international disputes, its non-compliance with international courts and its infrequent use of international law vocabulary have limited its ability to hold other nations accountable and develop new international law doctrines that align with its national interests.
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Democratic deficit in law-making
India has been a major contributor to the field of international law, especially in areas such as human rights laws, environmental laws, arbitration law, and trade law. The country is a party to more than 160 treaties and conventions dealing with various fields of law, including air law, space law, and maritime law. Despite these achievements, India's engagement with international law has been criticised for being marginal, particularly when it comes to articulating its national interests on the global stage.
One of the main criticisms of India's approach to international law is its failure to effectively employ the vocabulary of international law in its diplomacy. For example, India has not consistently used international law to call out transgressions of its sovereignty by neighbouring countries such as China and Pakistan. This failure to mainstream the lexicon of international law in its diplomatic toolkit has hindered India's ability to develop and contribute to new international law doctrines, interpretations, and principles that align with its national interests.
Another criticism is the lack of expertise in international law within India's foreign service. India's diplomats and policymakers are often generalists who do not have a strong background in international law, which may contribute to the country's marginal engagement with international law in its diplomacy. Additionally, Indian universities have not invested significantly in the development of international law as a discipline, and the government has been criticised for failing to fund research in this area.
India's approach to incorporating international law into its domestic legal regime has also been a subject of debate. India follows the principle of "dualism," which means that international law does not automatically become part of Indian law. Instead, an act of Parliament is required to transform international law into municipal law, as outlined in Article 253 of the Indian Constitution. However, it has been argued that the Indian Supreme Court has moved away from dualism towards "monism" by judicially incorporating customary international law (CIL) and international treaties into Indian law without the need for enabling legislation.
This judiciary-led transition from dualism to monism has been criticised for its potential to legitimise a democratic deficit in law-making. By judicially incorporating international law without parliamentary scrutiny, it could be argued that the judiciary is overstepping its bounds and encroaching on the role of the Parliament. This could create tensions between the judiciary and other organs of the state and has been identified as a potential area of contention by the parliamentary committee on external affairs.
In conclusion, while India has made significant contributions to international law in certain areas, it has been criticised for its marginal engagement with international law in its diplomacy and its lack of investment in developing expertise in this field. Additionally, the judiciary's incorporation of international law into Indian law without parliamentary scrutiny has sparked concerns about a democratic deficit in law-making, highlighting the complex nature of India's relationship with international law.
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Frequently asked questions
India has not used international law to hold Pakistan accountable for its breach of international law barring a few instances such as suing Pakistan at the International Court of Justice in the Kulbhushan Jadhav case. For example, India did not use international law vocabulary to call out Pakistan's falsehoods against India on the issue of Kashmir and instead made a case of Pakistan sponsoring terrorism.
India's foreign service is heavily populated by generalist diplomats and policymakers who rarely employ the international law vocabulary extensively. India's engagement with international law has been marginal, especially in articulating its national interests internationally.
The principle of dualism states that international law does not automatically get incorporated into the domestic legal regime. An act of Parliament is necessary to transform international law into municipal law. However, India has digressed from this principle and moved towards monism by holding that customary international law (CIL), unless contradictory to domestic law, is part of the Indian legal regime.
