A Case for India and Development of International Law at the International Court of Justice



Introduction


Under the Indian Constitution’s Directive Principles of State Policy under art. 51 and Article 40 of the Draft Constitution, 1948, endeavours to promote “international peace and security by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among governments and by the maintenance of justice and respect for treaty obligations in the dealings of organized people with one another”.[1] Similarly, in 1984, Hari Vishnu Kamath added, “India with her ancient cultural and spiritual heritage and her tradition - a centuries-old tradition of non-aggression – is best qualified to enhance respect for international law and treaty obligations.”[2] The following note shall discuss three cases in which India has been involved. Her involvement has led to the evolution of principles and jurisprudence for long-term consequences.


First being the Legal Consequences of The Separation of the Chagos Archipelago from Mauritius in 1965[3] (Chagos Archipelago Case):


(a) Legal Principles Established


The Advisory Opinion discusses the validity of the agreement between Mauritius and the United Kingdom (UK) over decolonization and self-determination of the Chagos Archipelago. According to the Court, “the UK is under an obligation to end its administration of the Chagos Archipelago as rapidly as possible”[4]. The International Court of Justice (ICJ) noted that “resolution represents a defining moment in the consolidation of State practice on decolonization and customary law character of the right to the territorial integrity of a non-self-governing territory as a corollary of the right to self-determination.”[5]The legal principle of self-determination has been enshrined in the UN Charter, the Covenant on Civil and Political Rights, the GA Resolution 1514 (XV), and the Declaration Concerning Friendly Relations and Co-operations among States under the Charter of the United Nations.[6]


(b) Dissent


In London, the High Court ruled that the resettlement was unlawful and permitted prohibition, punishment, and removal (including by the use of such force as is reasonable in the circumstances) of ‘unauthorized’ entry and presence in the Territory.[7] Additionally, UK’s Foreign Office responded by highlighting the non-binding nature of the Opinion to escape serious consideration.


(c) India’s Involvement and Conclusion


Aware of the security challenges, India nonetheless supported the claim of decolonization. In its submissions, it indicated that the Chagos Archipelago has been a part of Mauritian territory thereby indicating the legal responsibility of the UK to return the archipelago to Mauritius.[8] Decolonization, according to India, “remains incomplete as long as the Chagos archipelago continues to be under the UK”.[9] India assisted in diplomatic backchanneling[10] and lobbied for the UN Special Committee of Decolonization.[11]

To end, one can ascertain the evolution of oppression in its many hues. The freedom movements encapsulate the struggles of nations from one colonial ruler to another. India’s participation illustrates empathy and comradery. All in the name of emancipation cloaked as security risks. The ICJ through its Opinion has underscored the importance of its and the world’s commitments towards equality of all nations.


The second case, the Jadhav Case (India v. Pakistan)[12] played an instrumental role in laying down the right of access however was also considered as a missed opportunity by the Justices on the bench.


(a) Principles Established through Provisional Measures[13]


The Jadhav case echoes the Breard case[14] and Iranian Hostage[15] case on qualifications to produce provisional measures. As provisional measures, the Court requested Pakistan to “act in such a way to enable the ICJ to enforce any decision it takes on the Indian plea.”[16]



(b) Treaty Obligations


Under Article 36(1) of the Vienna Convention on Consular Relations (VCCR), communication, accessibility and legal recourse by representation to the foreign national must be provided. This is supplemented and personified under the Optional Protocol[17]. Pakistan was also obliged to protect and shield Jadhav’s basic human rights as protected under Article 6, 14 of the International Covenant on Civil and Political Rights (ICCPR) and VCCR Article 36 (1)(b).[18]


Furthermore, it is relevant to note Judge Robinson’s Declaration on Article 36 as a mechanism to provide foreign parity for foreign nationals facing criminal charges. He also highlighted the close connection between Article 36 (1) and ICCPR art 14(3).[19] Pakistan also argued that the 2008 Agreement on Consular Relations[20] trumps other prior agreements and is lex specialis. To this end, the Court disagreed and help it did not displace prior agreements and obligations thereunder.


(c) Evolution of Legal Princip and Judges’ Opinion


As held in the La Grand case, lack of providing a right to consular access vitiates from the standard of an effective trial, ratioine materiae of the treaty and breach of VCCR Article 36 (1)(a)(c).[21] Judge Trindade’s separate opinion also expresses his sorrow of seeing this as a missed opportunity to “pioneer” human rights under Article 36.[22] Judge Iwasawa opined that several anti-terrorism treaties and conventions grant access without delay to a terrorist from their representative states and include specific details on the treatment of terrorism suspects.[23] Judge Jilani, the sole dissenting opinion in the case[24] discussed the 2008 Bilateral Agreement on Consular Access. He recounted the purpose of the Agreement and held that through Article 73(2) of VCCR, Agreement supplements the Convention. Thus, according to Part VI of the 2008 Agreement, “in the case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits”. Since the arrest of Mr Jadhav was based on espionage and terrorism which are security grounds under the meaning of Article 73(2) of VCCR, Pakistan is within its rights to decide to provide consular access to Mr Jadhav ‘on its merits’. In his view, noting that Pakistan should, if necessary, adopt appropriate legislation for effective review and reconsideration “sets a dangerous precedent of dictating to the States how they must perform their obligations."[25]


(d) Conclusion


In conclusion, it can be held that the Jadhav case furthers the discourse surrounding (consular) access, communication, and the right to remedies. In short, a fair trial. A very basic and sacrosanct system enshrined in every legal system.

The third and the oldest, the India-Portugal Right of Passage over Indian Territory (Portugal v. India) played an instrumental role in India’s approach and protest in favour of re-thinking international law.


(a) Facts, Legal Principles’ Obligation, and Interpretation


Historically, Maratha rulers dominated the disputed region of this case and they allowed the Portuguese to “to quell insurrection or rebellion in the allocated villages”.[26] After Britain's conquest of India, the Portuguese used the route to Goa freely until the onset of World War II. The ICJ ruled that “Portugal is unfounded in asserting sovereignty based on a Treaty signed in 1779 negotiated by Portugal with the Maratha Empire. Furthermore, the 1779 negotiations never resulted in any formal agreement or transfer of sovereignty”.[27] According to the ICJ, “Portugal possessed a right of passage across adjoining Indian territory in 1954... to the degree necessary for the exercise of Portuguese sovereignty concerning private individuals, civil authorities, and goods”.[28]


(b) Dissent and Decision


In his dissenting opinion, India’s Judge ad hoc, Justice Chagla argued that “the source of the dispute is India's and Portugal's divergent views on the true legal effect of the events beginning in 1779… the Court lacks the authority to decide on facts and circumstances that existed previous to the relevant date.”[29] On the other hand, Justice Fernandes, Judge ad hoc from Portugal, held that right of transit extends to “armed forces, police, and arms and ammunition.”[30]


The Judgement reassures Portugal by noting that it retains the right of civil passage but not of armed forces, armed police, and arms and ammunition, and it satisfies India by stating that Portugal cannot intervene militarily in Indian matters.[31]


(c) Evolution of Legal Principles


The case was significant in reinforcing India's newly obtained sovereignty.[32] India through the case and diplomacy was attempting to put an end to attempts by European nations to seize portions of the disputed region using colonialist justifications. It was also instrumental in holding that a right of passage for any non-military vessel there is a regional customary international law. The Court reached this understanding after opining that a century and a quarter are sufficient basis to formulate rights and obligations for a local custom to germinate and enter a nascent stage. Since a local and specialized custom existed, it trumped general rules of international law and her interpretation.


Conclusion: India and International Law in the Future


In summary, it can be concluded that India, like many other states, remained to vary of international law and governance which would eventually become a ‘Government’. India’s trepidation after her independence and currently germinate not because of the structure, rather how and where India would be situated in the structure. As noted above in the India-Portugal case, India doubted the legality of treaties, which the Western view regarded as the fundamental source of international law. Specific treaty obligations were also the core of the Jadhav case. The Jadhav case and the Chagos Archipelago case are also commonly given their links to human rights protection. India’s role in the Chagos Archipelago case also reinforces its promises to end colonization. While submitting and contributing to international law, India has also rescinded further into her cocoon of sovereignty.

In the constitutional debates, Kamath noted, “…one world Government or one Super-State to which the various nation-States of the world will have surrendered part of their sovereignty and to which all these nation-States will owe willing allegiance and will accept the Sovereignty of this Super-State…”[33] Sovereignty has continued to remain of paramount importance. Through international Declarations[34] India has expressed her continuously renewed R/reservations[35] to shield sovereignty and shave its complicity to international law by limiting its jurisdiction to limited treaties. As a result, it has created the potential to exclude itself from disputes that may fall under the umbrella of customary international law by using national defence and security as smokescreens. In some sense, the modern foreign policy of India echoes the perspective of Kamath who held that “it is common knowledge that international law and treaties had sunk to a low level and treaties are regarded as mere scraps of paper...” [36] However, over the years, as this note has attempted to show, India has played an instrumental role in the evolution of international jurisprudence with long-term consequences for the international community.


Bibliography


[1] India. Constituent Assembly. Draft Constitution of India. New Delhi, Printed by the Manager, Govt. of India Press, 1948 (OCoLC)654518300 [2] Constituent Assembly Debates, November 4, 1984 speech by Shri H. V. Kamath, available at https://eparlib.nic.in/bitstream/123456789/762996/1/cad_04-11-1948.pdf [3] ICJ Advisory Opinion, 25 February 2019, General List No. 169. [4] Id. [5] Id. [6] However, it still ‘leaves the General Assembly a measure of discretion concerning the forms and procedures by which the right is to be realized’ and reiterates that no specific mechanism of implementation is recognized in customary international law in this regard. And UNGA Res 1514 (XV) (14 December 1960) (adopted at 15 sessions, agenda item 87). Paras 144–162. [7] Bancoult v. Secretary of State. [2006] EWHC 1038 (Admin). Paragraph 117. [8] ICJ, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion (23 February 2019), Indian Submissions. [9] Id. [10] Mitra D, 'Ahead of UNGA Resolution on Chagos, India Faces US-UK Pressure To Lean On Mauritius' (The Wire, 2019) <https://thewire.in/diplomacy/unga-chagos-india-mauritius> accessed 23 November 2021. [11] United Nations, 'Delegates Call Upon United Kingdom to Comply with Ruling by International Court of Justice That Chagos Archipelago’s Decolonization Was Never Lawfully Completed' (2019) <https://www.un.org/press/en/2019/gaspd696.doc.htm> accessed 23 November 2021 [12] I.C.J. Reports 2019, p. 418 [13] Jadhav Case, India v Pakistan, Provisional Measures, ICGJ 515 (ICJ 2017), [2017] ICJ GL No 168, 18th May 2017, United Nations [UN]; International Court of Justice [ICJ] [14] Test of "irreparable prejudice to rights which are the subject of dispute”. Paraguay v United States of America, provisional measures order, ICJ, 9 April 1998, p 257, para 36. [15] Qualification of “inviolability and effective protection” Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), provisional measures order, ICJ, 15 December 1979, p 21, para 47(a). [16] Jadhav Case, India v Pakistan, Provisional Measures, ICGJ 515 (ICJ 2017), [2017] ICJ GL No 168, 18th May 2017, United Nations [UN]; International Court of Justice [ICJ]. [17] Optional Protocol Concerning the Compulsory Settlement of Disputes (1963) to the Vienna Convention on Consular Relations (1963), http://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963_d... Vienna Convention on Consular Relations (1963), http://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf. [18] The rights in Article 14 of the Covenant apply to “everyone” including persons in a foreign country and apply in full equality so that a nation in a foreign country is entitled to the same protection through the rights set out in Article 14 as a national of his own country or a national in the receiving State. A bundle of rights is classified as ‘minimum guarantees of non-exhaustive rights’. United Nations (General Assembly). “International Covenant on Civil and Political Rights.” Treaty Series, vol. 999, Dec. 1966, p. 171. [19] Id and Sep. op., Robinson J., paras. 96–97 [20] Agreement on consular access between the Government of the Islamic Republic of Pakistan and the Government of the Republic of India, Pakistan 17 May 2017. [21] Le Grand (Germany v. the United States of America), Judgement, I. C. J. Reports 2001, p. 466. [22] Sep. op., Cançado Trindade, J., paras. 2 (iii). [23] Dec., Iwasawa, J., para. 4. [24] Dec., Jilani, J., para 2. [25] Id. [26] This authority must not be mistaken for control. Id., at p. 38. [27] Id., at p. 23 [28] Case Concerning Right of Passage over Indian Territory (Portugal v. India) (Preliminary Objections), [I957] I.C.J. Rep. 125 at p. 46. [29] Case Concerning Right of Passage over Indian Territory (Portugal v. India) (Merits), Judgment of 12 April 1960, [1960] I.C.J. Rep. 6 (dissenting opinion) (Chagla, J.), p. 114 [30] Id. p. 121. [31] R.P. ANAND, "The International Court of Justice and the Development of International Law" (1965) 7 International Studies, p. 228. [32] P.S. RAO, "The Indian Position on some General Principles of International law" in Bimal N. PATEL, ed., India and International Law (Leiden/Boston: Martinus Nijhoff, 2005), at p. 313 [33] Constituent Assembly Debates, December 13, 1946 speech by H.V. Kamath 40, available at http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C25111948.html (last visited on November 27, 2021). The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock, Mr Vice President (Dr H. C. Mookherjee) in the Chair. http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C25111948.html [34] Icj-cij.org. 2019. India | Declarations recognizing the jurisdiction of the Court as compulsory | International Court of Justice. [online] Available at: <https://www.icj-cij.org/en/declarations/in> [Accessed 11 November 2021]. [35] This is to suggest the formal and legal meaning of Reservation under international law and also to highlight the general meaning of the word. [36] Id 2.