New Delhi: Concerned that India cannot harness its inherent strengths in shaping international jurisprudence, a group of international law practitioners and researchers have approached the Ministry of External Affairs to take a more proactive approach to document and compile policy interventions and treaty decisions.
A draft of a letter, which had been in circulation for nearly a year among the Indian international law community, is now in the last stages of being finalised before being dispatched to the ministry.
“In our petition, we request the MEA to take up the task of curating state practice in a way that makes it possible for us to understand its decision-making systems, their impact domestically and internationally and, to improve them through democratic public consultations and rigorous intellectual engagements,” Rohini Sen, assistant professor at Jindal Global Law School told The Wire.
She pointed out that ‘state practice’ is the “form of currency that helps create and sustains laws favourable to certain states. Through public statements, rhetoric, gestures and repeated conduct, states determine whether an action is simply a habitual state practice or, if it is perceived as customary international law – a form of practice that carries legal obligations”.
The draft letter underlined that the absence of “readily available” state practice from the developing world had led to reliance on norms and scholarship from the Global North “which have little to no contextual and geographic relevance for the region”.
“For instance, the World Trade Organization property rights regime operates on a presumption of individual ownership of labour and output as against indigenous practices of communal resources and knowledge in several Global South states,” it said.
Draft Petition to the Ministry of External Affairs by The Wire on Scribd
Similarly, Sen cited the influence of the developed world on the “varying impact of climate change obligations, developmental rights and the hegemony of certain States in international decision-making processes”.
The shaping of customary international law is essential, as it also impacts domestic jurisprudence.
In a 1996 order, the Supreme Court had said that it was “almost accepted proposition of law that the rule of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law”. The case was about pollution caused by industries in Tamil Nadu, with the apex court making observations on principles of sustainable development and polluter pays.
Five months later, another Supreme Court bench made similar observations about the domestic applicability of customary international law in a case about phone tapping.
‘Lack of institutional interest’
This symbiotic relationship between state practice and customary international law has led many Asian governments, especially China, to form a comprehensive database of English language policy documents that are open to the public.
“Contra its reputation as the largest liberal democracy in the world, India has had a very one-sided relationship with international law in the past few decades. Even though the petition is facially only talking about state practice, it points to the deeper problem of the lack of institutional interest to effectively use the vernacular of international law,” asserted Shubangi Agarwalla, a Delhi-based international trade law practitioner, who runs a blog called ‘International Law and the Global South”.
She said that India will have to suffer from the opportunity costs as many in the neighbourhood, “including China through its Belt and Road Initiative, are investing a lot of resources in leveraging international law to further their interests.”
With its sizeable legal fraternity and usage of English, India has an advantage, but this has been squandered over the years.
The scholars also point out that MEA used to publish an annual document that listed all the public statements, activities and documents related to foreign policy. “However, the latest version of the primer was prepared and published in 2013, leaving a decade of unconsolidated practice,” said the draft petition.
The foreign ministry’s website has a database of pacts signed by the Indian government since Independence, but it has glaring gaps.
“The Indian Treaties Database, while extensive, is fragmentary and difficult to access for the purposes of study and analysis,” the signatories complained in the draft letter.
The database, maintained by MEA’s Legal and Treaties wing, should also list the applicable reservations and amendments made to each treaty, which would offer “a chronological account of our evolving international positions and commitments”.
No consolidated database
Kanad Bagchi, research fellow at Max Planck Institute for comparative public law and international law, noted that various ministries have their separate system of documentation, which are never linked to each other. “For example, the ministry of commerce may have a certain MoU. But, if one goes to the treaties database, they don’t have it, and neither do they cross-link or say that these are the new treaties in the trade division. It is a highly fragmented system”.
The scholars proposed that the MEA release an annual publication on lines of the US state department’s Treaties in Force.
India’s interventions at multilateral bodies, in New York and Geneva, are published regularly on the separate websites of the diplomatic missions to the two countries. While all statements are usually online, they are in disparate online locations.
The United Nations logo is seen on a window in an empty hallway at the UN headquarters in New York, US, September 21, 2020. Photo: Reuters/Mike Segar
The scholars agreed that despite India’s active participation in various fora, there was “no consolidated database of statements by the Indian representatives at international and regional forums such as the Sixth Committee of the General Assembly, the ECOSOC, the Human Rights Council, the G77, the India-Africa Forum Summit”.
Besides, India’s statements at institutions like the Geneva-based International Law Commission were not even available on MEA’s online network of websites.
“We request that a comprehensive database be curated for intellectual, pedagogical and empirical interventions we can make as a state as well as representatives of the global south in varying capacities,” said the petition.
Bagchi pointed out that with many Indian international law researchers based abroad due to a lack of opportunities at home, it becomes even more evident that the documentation system of Indian state practice is sorely lacking.
“In the countries that most of us are studying and working in, their governments have a very systematic approach to documenting every little step they are taking regarding foreign policy,” he said.
Agarwalla, who had worked in the International Law Commission, emphasised that her personal work experience made it clear that “lack of documentation really adds an avoidable barrier for UN bodies and foreign scholars to look at India as a site of knowledge production”.
Not just treaties, the scholars said that it would be helpful also to showcase the profiles of Indians who have been elected to bodies like ILC and ICJ, and counsels to various tribunals. They suggested that the MEA should share procedures and priorities for nominating individuals for various roles and lateral appointments outside of the civil service examinations.
“As students and scholars of international law, many of us aspire to work with the Ministry of External Affairs and represent India in matters of international law. The aforementioned recommendations will inspire and motivate us to work hard and prepare ourselves for these opportunities,” said the draft letter.
Calling for more engagement with society, the scholars point out that it would help identify people beyond the establishment for nominations to various international bodies. “This will also help democratise the process,” they wrote.
