The Hindu Editorial Analysis- 29th March 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

A disturbing example of the normalisation of lawfare

Why in News?

The conviction of the now former Congress Member of Parliament from Wayanad, Rahul Gandhi, for criminal defamation by a court in Surat, and his subsequent disqualification from the Lok Sabha, represents a disturbing example of the normalisation of lawfare in India.

ROLE OF INTERNATIONAL LAWS IN SECURITY ISSUES

• In the era where various geopolitical poles are formed on the world map, international law covers a wide array of security issues ranging from terrorism to maritime security.
•  Article1(1) of the UN Charter recognises the maintenance of “international peace and  security ”as a principal objective of the UN.
• International laws forces the international parties when such security issues come forward as every country is a part of world geopolitics whereby maintenance of it's own stand is important for country's benefit. 

INDIA IN USING INTERNATIONAL LAWS TO ARTICULATE ITS SECURITY INTERESTS

• Kulbhushan Jadhav case
  • This is when India correctly played its chance and focused on the security concern dragging Pakistan to the International Court of Justice. 
• Developing International law to counter terrorism
  • Whereby directly pointing towards the security agendas.

Failures:

• When India struck the terrorcamps in Pakistan in February 2019, days after a dastardly act of terrorism in Pulwama was carried out by a Pakistan based terror outfit.
• In justifying the use of force, rather than placing the 'Self-defence' card since Pakistan was unable or unwilling to act against the terrorist groups operating from its soil; it stuck to the contested doctrine of 'non military preemptive action’. 
• After the Pulwama attack, when India decided to suspend the most favoured nation (MFN) status of Pakistan, 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’
• Though, under international law contained in the General Agreements on Tariffs and Trade, countries can deviate from their MFN obligations on grounds of national security. 
• Still, Instead of suspending the MFN obligation towards Pakistan along these lines, it used a very weak step against Pakistan.
• When India wished to deport the Rohingya refugees, posing a security threat, the  argument to justify this deportation was given to be non-signatory to the Refugee

Convention.

• This is a weak argument since India is bound by the principle of nonrefoulement (a customary international law principle that prohibits a country from returning refugees to countries where they face a clear threat of persecution on account of race, religion, nationality, political opinion, among others).
• National security is one of the exceptions to the non-refoulement 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.
• For instance, 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 OF FOREIGN 

POLICY MAKING IN INDIA

• There are several reasons for the neglect of international law in the foreign policymaking in India.
• 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 under-staffed and largely ignored on policy matters.
• Moreover, an international law expert has far greater incentive to join the government as a generalist diplomat than as an international lawyer.
• Second, several other Ministries like Commerce and Finance which also deal with different facets of international law, every now and then, have negligible expertise in international law. 
• Third, there has been systemic neglect of the study of international law.
• There is scarcity of such institutions which undertake studies in this.
• And even if present, they have institutionalised mediocrity
• University centres mandated to develop the stream suffer from uninspiring leadership and systemic apathy.
• Fourth, many of the outstanding international law scholars that India has produced prefer to converse with domain experts only. Thus, they have failed in popularising international law among the larger public.

SUGGESTIONS

With the aim and intention to emerge as a global power and comeback as the old golden bird, 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. Develop special institutions for the same field and appoint lawyers with expertise on International law on important government positions and even in the committees. All the various ministries dealing with International law now and then should be made compatible with the changing scenario. After all, India is the place where Kautilya was born, a master of International relations and laws,