How India Lost Its Way in the Study and Use of International Law

That a rising chorus of perfectly reasonable voices pitched last month for India to militarily intervene in the Maldives to “fix” its political crisis should worry our foreign policy planners. The Ministry of External Affairs said little then to quell its possibility, but the suggestion itself was incredible.

The clamour for intervention could reflect one of two realities: as India’s options to navigate such regional crises gradually shrink, militarism may become an acceptable tenet in her neighbourhood policy. The United States’s policies towards Latin America during the Cold War suffered from such a predicament, as military action strengthened some constituencies in the US security-intelligence establishment, often at the cost of the political leadership.

Another factor could be the now-dominant view in New Delhi that international legal considerations matter little to South Asia’s hegemon. The few murmurs of protest against the legality of military intervention in the Maldives were, indeed, dismissed in cavalier fashion.

Scholars and diplomats may differ on the merits of this government’s South Asia policy, and whether it has served the national interest. But the neglect of international law in New Delhi is not a partisan problem – both the Congress and the BJP, as well as their attendant bureaucracies, have largely relegated the subject to a secondary concern of foreign policy. The step-treatment that the legal and treaties (L&T) division in the MEA has had to quietly suffer for decades is only a minor indication of an institutional malaise.

Broadly stated, there are two approaches to international law among pundits, politicos or practitioners in New Delhi: one that views it as “rules for losers”, i.e., weak and powerless states, to obey; and another, that argues states to be in any case not bound by international law. To varying degrees, both claims are correct. The international rule book is waved most often at smaller nations, while the major powers have, in some way or another, bent, twisted or broken them over the years. Take the forthcoming meeting between Donald Trump and Kim Jong-Un, for instance. The prospect of shaking hands with the US president has lifted the political fortunes of the North Korean leader although the regime of sanctions on his country remains in place. The United States has, by reaching out to North Korea, weakened the political foundations of an international legal apparatus that it worked hard to create. The end of North Korea’s pariah status is not necessarily a bad outcome, just a reflection of the reality that international law often serves at the pleasure of the great powers.

The second argument – that states are not bound by international law – is not so much a serious claim as it is a rhetorical device employed by those who believe sovereign nations act and do as they please. The American scholar Louis Henkin famously observed that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time”. India is almost certainly one such nation. But even as India complied scrupulously with its obligations, the debate over international law itself has become moribund, limiting the ways in which the country’s foreign policy can benefit, and indeed, re-orient itself through creative and strategic uses of legal principles.

From warfare to ‘lawfare’

That international law is as much a tool of state policy as its political, military or economic power is no revelation. The term ‘lawfare’ has gained currency in recent years, but it has always been the practice of states to use seemingly impartial legal instruments to further their own interests. In the 19th century, Prussian chancellor Otto von Bismarck masterfully convinced European states that his provocative attempts at German “unification” were actually in defence of the Congress of Vienna treaties. In 1928, France, Germany and the United States signed the Kellogg-Briand Pact that “outlawed” war. The treaty is often dismissed for its failure to prevent World War II, but it did provide the political ammunition to prosecute the aggressors at Nuremberg and Tokyo.

In the latter half of the 20th century, the United States enacted wide ranging legislative measures to protect its “strategic industries” – like semiconductors – from Japanese counterparts on national security considerations, although the real reason was its fear of losing ground to foreign competitors. The last few decades have seen many efforts to “upgrade” the legal status of Palestine from a mere “observer” at the UN – which finally paid off in 2012 – with a view to improve its political standing vis-a-vis Israel. And just two years ago, the Philippines, nudged by the United States, initiated legal proceedings against Beijing’s move to claim sovereignty over large parts of the South China Sea, eliciting a favourable arbitral award from the International Tribunal on the Law of the Sea. In other words, some of the most intractable political issues of the time have been tackled, with varying degrees of success, through international law. Why has India, an original signatory to constitutional documents in international law such as the Treaty of Versailles and the United Nations Charter, not conducted more “lawfare”?

The eve of the 2018 Philip C. Jessup International Law Moot Court is an apposite occasion to raise, and offer a modest attempt at answering this question. “The Jessup”, as it is informally called, is the premier calendar gathering of students, teachers and practitioners of international law in the world, and attracts significant participation from law schools in developing countries.

Indian teams tend to do well in the competition, but their performance is by no means a reflection of the state of scholarship back home. The teaching of the subject in India’s national law universities — where it is considered at par with municipal law, and thus seen as a formalistic collection of treaties, instruments, moral principles and so on — leaves much to be desired. The condition among the already scarce international law journals and institutions is even more precarious. For example, a whole host of frontier issues in international law have opened up on account of digital or autonomous technologies – their salience is not purely academic, as the Indian government is itself involved in key negotiations on these issues at the UN and elsewhere. Yet, there appears to be nary an article or scholastic assessment of the legal considerations in Indian law journals. Even long-debated principles or issues such as the “use of force” or those around laws of war need an urgent interrogation as the environment in South Asia heats up, but these too have not been forthcoming. There are points persons for international law in the National Security Advisory Board (NSAB) and the National Security Council Secretariat (NSCS), but one can only wonder who they call to clarify matters.

International law and Nehru

This was not always the case. In the initial years after Independence, India paid serious attention to international law, on account both of circumstance as well as reasons of self-interest. The constant invocations of the Kashmir dispute at the UN Security Council kept New Delhi on its toes, in addition to which there were several international legal instruments to be negotiated and signed – or sometimes stayed away from – during this period, such as the Universal Declaration of Human Rights and the Refugee Convention. What’s more, India had been dragged to the International Court of Justice by Portugal in defence of its right to passage to its (then) enclaves, Dadra and Nagar Haveli.

The post-War environment also reflected the heyday of international law. The League of Nations and United Nations bore some similarities, but the UN Charter achieved what the Treaty of Versailles couldn’t do – acceptance by the United States. Having emerged victorious from a devastating war, the US recognised the importance of an international legal order to reconstruction and stabilisation activities in Western Europe. The Bretton Woods institutions were at the heart of this order, and through the International Monetary Fund’s Articles of Agreement states agreed for the “first time in history [to establish a] treaty that governed money.” More importantly, other parts of the world had begun to fall under the shadow of the Cold War, and Washington needed reliable institutions that could help stanch the spread of communism.

Philip C. Jessup, the scholar, diplomat and judge after whom the moot court competition is named, was a creature of this environment. He was appointed in 1949 by President Harry Truman as the first US “ambassador-at-large”, a post expressly created to recruit global allies in the Cold War. Jessup’s impressive achievements and scholarship digress from the subject at hand, but it bears mentioning that he had a close, if not discernible, link to India. Before his appointment as a roving diplomat, Jessup had been US deputy permanent representative in the UN Security Council, where he participated in discussions on the legal status of Kashmir and India’s forceful actions in Hyderabad. But the turning point in his engagement with India came in early 1949, when Dutch military aggression in Indonesia came to a head. Right from 1947, India had declared the Netherlands to be in violation of Charter principles, and in December 1948, Prime Minister Jawaharlal Nehru announced the convening of a conference of Asian leaders to address the military crisis. As a leading advocate of self-determination, New Delhi was at the forefront of highlighting the Indonesian crisis in the UNSC and elsewhere, but the United States – viewing developments in Southeast Asia from the lens of the Cold War – had been lukewarm to Jakarta’s proposed independence. Days before Nehru convened the gathering in New Delhi (which eventually urged strong collective action by the Security Council against the Hague), Jessup delivered a speech  at the UN that is considered a watershed in the crisis’ timeline, throwing US support behind Indonesian independence.

Although the international legal principle of self-determination had been absorbed into the UN Charter and predecessor documents, its American embrace – led by Jessup and others – was crucial to the “wave” of decolonisation that followed. Jessup’s view on self-determination was also consistent on the question of China, and while he tip-toed around the recognition of the Communist regime in the mainland, he sensed the overwhelming opposition in the General Assembly to any attempt by the Nationalists in Formosa to re-take the country.

It is in this context that Jessup first met Nehru, during the latter’s trip to the United States in October 1949. The Prime Minister’s unusually long trip to America is not recalled for its successes, but if news reports of the time are an indication, the two men hit it off when they shared the stage at an event in New York organised in Nehru’s honour. Jessup would visit India the next year as part of a “Far East” tour, gaining favourable press as a diplomat known for his moderate views. Later, when the Indian Society of International Law was set up in New Delhi with Nehru as its patron, Jessup – by then a judge of the ICJ – would be one of its seven honorary members.

Jessup and Nehru were practitioners of diplomacy who harboured very different worldviews, but shared an abiding interest and respect for international law. Beyond their professed idealism – Nehru’s passion for Southern solidarity and Jessup’s early advocacy for a “world government” – both men understood the political utility of international law.

India under Nehru was prepared to invest in legal institutions and instruments although they were often used to needle her through sensitive discussions on Kashmir, Goa or Hyderabad. Indeed, New Delhi was an enthusiastic participant in some of these venues. When the UN Committee for the Progressive Development and Codification of International Law was created in 1946 – Jessup was its American representative – India was elected to chair the body. And despite the partisan nature of appointments to international courts or tribunals, India was careful to preserve the appearance of impartiality or autonomy.

When India’s first judge to the ICJ, B.N. Rau, recused himself from the 1952 Anglo-Iranian oil dispute on account of having expressed his views previously on the matter as the permanent representative to the UN, he courted controversy. The Ministry of External Affairs then had to convene a press conference, explaining – according to a Times of India report – that as an ICJ judge Rau was “completely independent” of the government of India and had neither requested nor received any instructions from New Delhi on his recusal. Contrast these actions with that of Judge Dalveer Bhandari, who as an ICJ judge seeking re-nomination from the government, publicly endorsed India’s position last year in the Kulbhushan Jadhav case before the Court, “applauding” the interim verdict in an interview with the Indian Express.

How did India lose its way?

The main reason for the neglect of international law can be attributed to its slow but visible separation from international relations as a field of study. This has been a universal phenomenon, and not a development isolated to Indian universities. As a scholastic enterprise, international law needs to be cultivated or assessed alongside its political and economic context, and such a research agenda has not been forthcoming in most institutions of excellence.

In the United States, Myres McDougal and Harold Lasswell pioneered the “New Haven School” that recognised the strong links between international law and politics of those who made, protested or interpreted it. From Yale, this integrated approach to international law carried over to institutions that specialised in other disciplines such as the University of Chicago (economics), the Fletcher School (international relations) and Harvard University (political theory). Some of the most prominent, early advocates of realism – like Hans Morgenthau – were lawyers or law professors. But as the embers of the Cold War died down and the challenge to US hegemony subsided, American departments of political science came to be dominated by a strand of thought that seeded international relations with tenets of market economics. This school viewed states as rational units with immutable interests, and paid no attention to international law, since treaties or legal principles only reflected what states would have done in any case. But in the last decade or so, a distinctive IL/IR approach has emerged, trying to blend the prescriptions of legal theory and social science rigour of international relations.

In India, no such synthesis has occurred. In no small part due to her warming up to the United States, both Western international relations and international law theory has been uncritically accepted and prescribed in Indian university curricula. Law faculties in India have embraced an increasingly moralistic conception of international law, content with citing Hugo Grotius or the so-called “natural law” jurists, while Indian “realists” tend to fetishise the views of Alfred Mahan and more recently, of Halford Mackinder. Efforts to orient their analysis to India cannot be reconciled easily with the political context in these theorists operated. Grotius was counsel for the Dutch East India company and whatever “seminal” contributions he made to international law, especially the law of the sea, were essentially a brief for his employer’s unfettered market access. Mahan was a US military officer whose analyses were used as foil by Theodore Roosevelt and other political leaders for an expansive naval strategy. And Mackinder, who emphasised the strategic vitality of the Eurasian heartland, sought for Britain to turn its attention to the continent, to counter the rise of Germany and the Soviet Union. To the extent basic principles or views can be distilled from their works, Indian students should read and understand these scholars, but to base foreign policy on their advocacy would be ill-advised.

Ultimately, only strong academic engagement and scholarship in India can resuscitate its moribund practice of international law, and restore the subject to its rightful place in the conduct of our diplomacy. When The Wire sent this author to The Hague in 2016 to cover the South China Sea arbitral award, I reached out to international lawyers and historians to get a better sense of the dispute. One of the considerations at hand was the award’s legal and political implications for India and how New Delhi should receive it. In particular, its bearing on the India-Pakistan maritime dispute over Sir Creek was a matter of contention. To seek guidance on this issue, I spoke to Prof. V.S. Mani, the country’s leading scholar of international law. (This was the last time we would speak, as Prof Mani sadly passed away a month later). In response to my leading queries on whether India was ignoring the potential impact of the award on its own maritime boundary, Prof Mani said, “you have an argument here, but I really wonder if Indian policy makers are thinking along these lines.” As it turned out, New Delhi rushed to judgment on the verdict, trying to knock China back a peg, but without any serious or rounded assessment of its own interests.

The rise of China presents India with the urgency to increase its repertoire of foreign policy instruments. Between the “soft” strategy of shaming and protest that it has followed on the Belt and Road Initiative, and the “hard” but politically costly military manoeuvres in Doklam, India can find a useful tool in lawfare. But New Delhi cannot re-integrate international law into its foreign policy overnight – the diplomatic establishment needs the support and counsel of the academe, which has itself some way to go to further international law research. Law schools in India place a premium on competitions like “the Jessup”, but it is through a solid grounding in the vocation and teaching of international law that our universities can cultivate women and men of the caliber and acuity of Philip C. Jessup.

Arun Mohan Sukumar is a doctoral candidate at the Fletcher School, Tufts University, and a judge at the 2018 Jessup Moot.