International Law

“International law is a law of coordination, but not subordination. It is usually regarded as a law between, but not above several states.” – David John Harris

It should worry the foreign policy planners of our country that a perfectly reasonable and logical sect of voices clamour for “military intervention” or in layman terms suggest going to war whenever a crisis arises.

The call for military intervention to handle regional disputes in its neighbourhood, generally motivated by patriotism, even by those educated and heralded in higher positions in the country pin-point towards one problem that’s vastly ignored: development and education in the area of International Law in India.

International Relations and its area of study, International Law, is merely presented as a derivative of different Western Schools of thought. As a predicament to British Raj for more than a century, a substantial portion of Indian Laws and Indian legal system is based on British Law.

The status of International Law within a municipal legal system is generally determined by the Constitution of a State or Municipal Law. Unlike France, United States, Germany and some modern Constitutions that provide relatively clear provisions for the Domestic Application of International Treaty Law or Customary Law, the Constitution of India does not make specific, emphatic reference to the status of International in its domestic legal system, nor does it obligates explicitly or authorizes the judiciary to draw on International Law.

The necessary provisions of the Constitution of India relevant for consideration of its interaction and inter-relationship with International Law are;  Article 51,  Article 73, Article 245 & 246, Article 253, Article 260, Article 363, Article 372 and VII schedule – entries 10 to 21.

India might have harmonised many of its domestic laws in keeping with International rules and norms to fulfil its international commitments, but we seldom see any issue related to the international law being spoken of, apart from “handshakes” between official heads of countries.

International Relations and the area of study, International Law, may seem like a level playing field regarding enactment wherein a uniform code of law sans any subjectivity should be applied. However, it is to be kept in mind that International Law doesn’t exist without International Relations and there is no level playing field between nations and their relationships. The possibility of an “Indian” conception of International law and relations will always be due for vexed and politicised debate.

When it comes to Government entities, Legal and Treaties Division of the Ministry of External Affairs was created in 1957 as a starting point to deal with all areas of International law to the Government of India. This Division is the only source of legal advice for the Ministry of External Affairs. Legal and Treaties Division also advises other Ministries/Departments of the Government of India on all matters related to International law and conclusion and interpretation of treaties.

Generally expressed, there are two approaches to international law among experts, politicos or gurus 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 rulebook is waved most often at smaller nations, while the major powers have, in some way or another, bent, arm twisted or broken them over the years.