Context

Military experts, international relations academics, and practitioners like retired diplomats dominate the debates on global security in India. International lawyers are largely absent in these debates despite security issues being placed within the framework of international law.

Using international law to further security interests

In recent times, several examples demonstrate India’s failure to use an international law-friendly vocabulary to articulate its security interests.

• First, India struck the terror camps in Pakistan in February 2019, after the Pulwama attack India did not invoke the right to self-defence; rather, it relied on a contested doctrine of ‘non-military pre-emptive action’.
• Second, after the Pulwama attack, India decided to suspend the most favoured nation (MFN) status of Pakistan.
• Under international law contained in the General Agreements on Tariffs and Trade, countries can deviate from their MFN obligations on grounds of national security.
• Instead of suspending the MFN obligation towards Pakistan along these lines, India used Section 8A(1) of the Customs Tariff Act, 1975, to increase customs duties on all Pakistani products to 200%.
• The notification on this decision did not even mention ‘national security’.
• Third, India wishes to deport the Rohingya refugees who, it argues, pose a security threat.
• India’s argument to justify this deportation is that it is not a signatory to the Refugee Convention.
• This is a weak argument since India is bound by the principle of non-refoulment.
• National security is one of the exceptions to the non-refoulment principle in international refugee law.
• If India wishes to deport the Rohingya, it should develop a case on these lines showing how they constitute a national security threat.
• Fourth, to put pressure on the Taliban regime to serve India’s interest, India has rarely used international law.
•  India could have made a case for the South Asian Association for Regional Cooperation (SAARC) using its implied powers under international law to temporarily suspend Afghanistan from SAARC’s membership.

Reasons for international law remaining at the margins

• First, there is marginal involvement of international lawyers in foreign policymaking.
• The Legal and Treaties Division of the Ministry of External Affairs, which advises the government on international law matters, is both understaffed and largely ignored on policy matters.
• Second, apart from the External Affairs Ministry, there are several other Ministries like Commerce and Finance that also deal with different facets of international law.
• They have negligible expertise in international law.
• Third, there has been systemic neglect of the study of international law.
• Fourth, many of the outstanding international law scholars that India has produced prefer to converse with domain experts only.

Way forward

• If India wishes to emerge as a global power, it has to make use of ‘lawfare’ i.e., use law as a weapon of national security.
• To mainstream international law in foreign policymaking, India should invest massively in building its capacity on international law.

Conclusion

Notwithstanding the central role that international law plays in security matters, India has failed to fully appreciate the usage of international law to advance its national security interests.

Back2Basics: Non-refoulement principle

• The principle of non-refoulement constitutes the cornerstone of international refugee protection.
• It is enshrined in Article 33 of the 1951 Convention, which is also binding on States Party to the 1967 Protocol.
• Article 33(1) of the 1951 Convention provides:

“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.”

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