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India and International Law, volumes 1 (2005) and 2 (2008)
India and International Law, volumes 1 and 2, edited by Bimal N. Patel examine India's policy and practical approach to classical, contemporary and emerging subjects such as general principles, human rights, refugee, space, trade, nuclear weapons, nuclear energy, climate change, investment, sports, banking, biotechnology, taxation, feminism, arbitration, and the role of India in UN reforms, among others.

Despite the fact that international organizations, non-governmental organizations, civil society and individuals play an important role in forwarding ideas and shaping indirectly the rules, principles and concepts of international law, however, the fact remains that states are still the most fundamental actors in formulating international law. India’s efforts to remove colonialism, apartheid, global economic inequality, etc. are the hallmarks of its contributions; currently its role in the evolving international regimes of international trade, international patents, space and maritime laws, just to name a few, is significant. On the other hand, its efforts to reform international organizations like the United Nations and to ensure permanent membership in the Security Council for countries which have made significant contributions to the realization of the purpose and principles of the United Nations indicate its commitment to work for more democratic international legal institutions.

India has produced several international lawyers of repute who have been expressing their views on international law in a pronounced manner particularly after the independence of the country. The views of various experts are not available at any one single source. There has been a need to put in one place as far as possible the views of some Indian international lawyers of repute who would bring out India's contribution to the codification and progressive development of international law in various fields so that the policy-makers and scholars both in India and outside would get the assistance of a single volume which would serve the purposes of policy, research and reference. India and International Law volume (2005 and 2008) fill this important void. While 2005 volume analysed classic and traditional areas of international law, volume 2008 (volume 2) seeks examination of India's policy and practical approach to contemporary and modern issues of international law, such as nuclear weapons, nuclear energy, climate change, investment, sports, banking, biotechnology, taxation, feminism, and India and UN reforms. The second volume identifies and analyses solutions to legal issues in the area of private international law, which hopefully would serve the purposes of relevant policy-makers, judiciary, common men and women and 2.5 million Non-Resident Indians (NRIs).

These two volumes, prepared by a team of nearly 30 international law practitioners and scholars of India, aim to promote teaching and research of various subjects of international law in university law departments and national law schools, to bring Indian scholarship on the subjects to the attention of the world community which will help to get a different perspective on these subjects, to enhance specialised studies in emerging subjects of international law which is critically needed and to provide ideas and suggestions to the policy-makers in the related areas and thus to contribute to the enhanced interactions between the scholarly and policy-making and law-making bodies, such as, the Indian Law Commission, State Law Commissions and various statutory bodies (Energy Commission, Sports Authorities) of the government at national and state level. In nutshell, these two volumes, unique of its kind, will provide useful framework for similar studies and will remain important source of consultation for those who are interested in understanding India's state practice on international law. India and International Law volumes 1 and 2 enable the readers to realize the sheer magnitude of legal challenges faced by India.

Most important salient concluding features of volume 1 and 2 are as follows:

2005 volume (volume 1) - ISBN 90-04-14519-2):

  • Constitution of India: The drafters of the Indian Constitution have taken meticulous care of the traditional international concerns such as war and peace, peaceful settlement of international disputes, negotiations, conclusion and implementation of international agreements as well as modern international law concerns such as protection of environment and human rights and have incorporated the existing and evolving norms in various provisions.
  • General Principles of International Law: India’s position and contribution on the general principles and major issues of contemporary international law such as recognition, self-determination, principles of non-use of force and non-intervention, state responsibility, prohibition of use of nuclear weapons, terrorism, legislative role of the UN Security Council, judicial review of the decisions of the UN organs, terrorism, legislative role of the UN Security Council, judicial review of the decisions of the UN organs, terrorism, jus cogens and erga omnes obligations, the jurisdiction of the International Criminal Court, emerging system of multilateral order and the United Nations and peaceful settlement of disputes, illustrates the importance and consistency of the role India has been playing in the pre-colonial era and in the post-independent phase in promoting rule of law in international relations.
  • World Trade Organisation: With regards to the trade in services, it is clear that services are subject to a number of non-tariff barriers, which mostly remain invisible. This, most of the time, makes it difficult to quantify the exchange of concessions. There is a need to have total transparency, along with a legally binding international code on restrictive business practices. It is pertinent that developing countries should have a proper legislative framework on restrictive practices. India has already adopted the Competition Act, 2002 (partly in force), which, though not service specific legislation, will address the anti-competitive practices of the enterprises.
  • Intellectual Property Rights (IPRs): In the area of intellectual property rights (IPRs), it is seen that India had a marginal space to accommodate its concerns. While for India, its concerns on IPRs, particularly on patent protection, were clear, its WTO obligations required it to modify its existing patents law. The last years have seen India gradually amending its Patents Act of 1970 to meet its WTO obligations. Implications of these modifications are slowly sinking down into the Indian economic and industrial development process. While it appears that India has managed to withstand some of these changes, the precise legal and economic implications of these changes, particularly in the area of the pharmaceutical and chemical sector, needs long-term review. Currently, India is moving forward with the changes as envisaged under the WTO regime. Some of these changes, it may be noted, may become new battlegrounds for a new interpretative matrix within the WTO dispute settlement system.
  • Human Rights: India’s experience in human rights reveals that democracy, freedom and rule of law are not luxuries which only the Western societies can afford.
  • Refugees: It is to the credit of India that it not only hosted a number of refugees from different countries in the past but even accorded them humanitarian treatment and protection in the spirit of the UN Charter, human rights treaties and the cardinal principles of international refugee law and successfully repatriated the Bangladeshi, Chakma and Sri Lankan refugees in the most commendable way without being bound by the 1951 Refugee Convention or its 1967 Protocol. India can rightfully boast that it has been able to deal with the numerous refugees problems in a satisfactory manner even in the absence of a refugee specific legislation and that its human rights commissions and courts are better placed to provide the necessary protection to individuals as well as group refugees. It is imperative a comprehensive legislation be enacted which should adopt a balanced and practical approach to the refugee issues by ensuring a harmonious balance between humanitarian concerns involved in the refugee situation on the one hand and security concerns and the national interest of the country on the other.
  • Environment: India, at national level, is proactive in promulgating stringent environment laws, contrary to the reluctance it shows towards accepting an internationally agreed standard. This duality of approach needs to be converged. Providing incentives to India, which is willing to shoulder tougher environmental obligations, could work better than punitive measures imposed on the unwilling States. One such incentive is: setting equitable standards, on the basis of the principle of common but different obligation, for the developing countries, in vital areas of life threatening pollution such as that which affects climate change. Another possible way is, by a codification of the law of State responsibility through integration and unification of nationally accepted environmental standards on State responsibility and liability, which by nature are more stringent, legalistic, and free from development related expression. This could be done through a process modeled on the UNCITRAL model law on specific pollution and also through formulation of general principles comparable to the UNCITRAL code. This method could certainly help consolidation and codification of pure principles of environmental law acceptable to many developing countries as they are fit for instantaneous application.
  • Outer Space: India’s space research and explorations have paid enormous dividends to the public. The space research and its practical application have resulted in providing a modern and affordable telecommunication system, internet connectivity, radio and television broadcasting, in addition to contributing to the spreading of education, telemedicine etc. Space operations are carried out all of public funds. It is noteworthy that India has declared that its entire range of space research is for peaceful purposes and not for military purposes. It employs several thousand scientists and civilians. The space organizations such as Indian Space Research Organization and its scientists enjoy enormous public esteem in view of their excellent contribution to India’s reputation as a space-faring nation. Under such circumstances India could do better if it enacts a domestic law on its space activities subject to such constitutionally permissible restrictions and national security interests. Before ending, it may be pointed out that enacting comprehensive domestic space legislation for India, given the range of activities, is undoubtedly a tedious task. Neither scientists nor lawyers alone can confidently discharge the task in this regard. What is needed is a working group comprising space scientists and expert international lawyers to make draft legislation for the consideration of the government.
  • International Court of Justice: Indian position and attitude towards the Court, like any other sovereign state, is guided by the considerations of the national interest. It is proposed that there is more scope for India, in line with her overall influence in international relations, to guide the development of international law by way of increased activeness in its overall functioning of the Court. One way of doing this is to submit written statements and participate in the oral proceedings of all advisory proceedings, particularly when such proceedings may have impact on the broad objectives of development of international law. India, during the negotiations of the current and future treaties, should consistently advocate attaching a jurisdictional clause to every multilateral treaty conferring jurisdiction, at least, primarily, upon the ICJ. Furthermore, India can favourably look into the idea of national court or tribunal seeking guidance from the ICJ. Last but not the least, Judge Nagendra Singh advocated for the use of advisory opinion in case of inter-state disputes, to obtain – if not actual settlement of the dispute – at least a legal basis for such settlement. This position which has found support among number of Indian scholars is another meritorious proposal.
  • Arbitration: India has not only responded in positive terms to the need for speedy and effective resolution of disputes arising out of international commercial transactions and respected every single united move of the world of nations being a signatory to all the international Protocol and Conventions and ratifying them at the earliest, but also has taken appropriate legislative measures to give full effect to the same. In the same spirit, India has adopted the UNCITRAL Model Law with a view to bring about an uniformity in the law and practise of international commercial arbitrations and also to provide for enforcement of the foreign arbitral awards and enacted a consolidated law- the Arbitration and Conciliation ACT, 1996. With the statutory recognition of institutional arbitrations, India is for now the ideal venue for conduct of all international arbitrations particularly those involving Asian countries. The institutions like Indian Council of Arbitration (ICA), (ICADR), etc. are the counterparts of the European institutions like International Court of Arbitration (ICC), International Council for Commercial Arbitration (ICCA), London Court of International Arbitration (LCIA). The Law Commission of India in its 176th Report has suggested a number of legislative reforms. In fact, in the Arbitration and Conciliation (Amendment) Bill 2003, international arbitration awards have been given a special status by limiting the scope of the expression ‘public policy of India’ to mean ‘(i) fundamental policy of India, or (ii) interests of India, (iii) justice or morality’ which perfectly match the concept under the private international law. Large number of arbitration awards that came up for enforcement in the Indian courts received due recognition and are executed with expedition. Many proceedings initiated in the domestic courts are stayed and the parties are relegated to arbitrations if the contracts between them provide for such arbitrations. A large number of ICC awards have already been enforced. India could certainly boast of its well-developed legal regime, jurisprudence and its experts, both legal and technical, comparable to the best in the world. India could therefore be the natural choice for the men of commerce for the seat of international arbitrations.

Volume 2 (2008) - ISBN 978- 90-04-16152-8)

  • UN Reforms: India’s role in the current round of UN reforms has displayed a balance sheet wherein the long-term achievements, which have promoted direct national interests, are less than overall achievements, which have promoted common interests of developing countries. It is perhaps a realistic assessment but the chances of expansion of the Security Council membership, especially, the permanent membership are not visible until and unless a drastic change in the convergence of interests and needs of current permanent members takes place.
  • Nuclear Weapons and Nuclear Energy: As far as nuclear weapons are concerned, despite espoused claims, Indian position, which is deeply rooted in the national security and energy interests, does not allow us to judge whether and to what extent it will set an example of nuclear disarmament for other states in the world. It is essential imperative that the country’s energy law internalizes the concerns of environmental law and cleans development mechanism, which emphasizes on clean technology and energy efficiency by emission reduction, which clearly underpins the recommendations by various summits on sustainable development. In view of the importance of the subject, it is essential that India pays fullest attention to energy issues in its foreign policy.
  • Banking: India needs a sound banking system, which could provide adequate financial support to the increased levels of developmental activity being brought about by foreign and domestic players. The current system lacks certain risk-avoiding measures, which are essential for any banking system. However, India’s IT empowered manpower has contributed greatly in making banks in India Basel-II compliant, since it provides with ease the software tools, database management systems and hardware required for Basel-II compliance to create a risk management system and infrastructure.
  • Biotechnology: In the area of biotechnology laws, since the 1970 act responded well to the specific socio-economic challenges and served well in the last three decades, the amendment to 1970 act is facing enormous challenges especially in the area of medicines. India is trying to put post-TRIPS patent system in place but unless it addresses all concerned areas, it can have disastrous impacts as far as the access and affordability of medicines are concerned for the large masses.
  • Investment: Looking at the investment treaty program in India, one is lead to believe that it is possible for the Indian executive wings to initiate and timely pursue reforms in the national legal system making them compatible with international obligations in a quick time period, however, the will has to be there. There is a need to have an adequate mechanism to monitor whether the so-called advantages of foreign investment like, transfer of technology, capital flow, increase in employment opportunities, etc. have also been increasing, and if there is any such increase, how far they have been contributing towards an economy’s sustainable growth and development.
  • Corruption: There is no scarcity of anti-corruption laws in India and the problem is of abundance. An early ratification of UNCAC and enactment of necessary laws or incorporation of additional provisions in the existing ones would contribute greatly to the eradication of corruption. Together with these measures and effective implementation of the Right to Information Act, 2005, there are bright chances of fighting against corruption.
  • Sports: In the area of sports law, it is clear that the governmental regulations that exist in the European Union and the USA on broadcasting of sports are not suitable in the Indian context. Therefore, until private free-to-air sports broadcasting competitors emerge, undue protection to the national channel is not preferable.
  • Feminism: By displaying a remarkable degree of judicial insight, judicial sensitivity and judicial statesmanship, the Supreme Court of India has developed gender sensitive human rights jurisprudence on the basis of the contemporary understanding of gender based violence as gender-based discrimination by putting an activist interpretation on Articles 14, 19 and 21 of the Constitution in the light of principles, norms or standards enshrined in the international human rights instruments, particularly the Convention on the Elimination of All Forms of Discrimination Against Women, 1979.
  • Family laws: An examination of the family law and religion strongly underlines the importance of one indigenous Indian law applicable to all its communities, which coexist democratically. Various chapters of volume 2 convincingly argue that India should become a member of the Hague Conference on Private International Law, which will help in facilitating solutions of myriad of family law problems. At the time of writing this review, India has become a member of the Hague Conference on Private International Law.
  • General: The most important thematic conclusion of both volumes is that India needs to enact comprehensive national laws to be in conformity with its international obligations under international agreements. This Herculean task can be achieved with pro-active legislature and involvement of all stakeholders in the process of drafting national laws. These volumes also highlight the important role played by the Indian judiciary to import emerging international norms and standards into the judgment regardless of India having been party to international agreements, especially in the areas of environment, private international law, and human rights. Last but not the least, the government would be significantly benefited by the placement of full-time international legal advisers at important diplomatic missions such as Geneva, London, the Hague, Vienna, Nairobi, Bangkok, Paris.
BIMAL N. PATEL, is a staff member of Organisation for the Prohibition of Chemical Weapons (OPCW), the Hague, the Netherlands; Honorary Coordinator (Europe), Indian Society of International Law. He has prepared several articles and books on international law, among others, The Court World Reference Guide (1922-2000), introduction by Shabtai Rosenne (Leiden: Kluwer, 2002), India and International Law volume 1 (Leiden: Brill, 2005), A Comprehensive Guide of Laws of Human Rights in Commonwealth Countries (Nagpur: Wadhwa, 2007) and is a visiting professor/guest lecturer on international law and international relations at various universities and institutions in Asia, Europe and Pacific.

Volume 1: http://www.brill.nl/default.aspx?partid=210&pid=21512
Volume 2: http://www.brill.nl/default.aspx?partid=210&pid=28405

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