Introduction

As the world steers more and more toward globalisation, the interdependence of states vis-à-vis their institutions, actors, and policies has rapidly and considerably increased (Roger, Jeffrey, & Elliott-Gower, 2017). Bilateral and multilateral cooperation amongst states especially in the context of economic liberalisation has become an inescapable imperative. However, such interdependence does not remain constricted to economic nuances. We are currently witnessing an age of disruption, wherein the global community is faced with a myriad of global crises such as climate change, conflict, security threats, increased forced migration, food and water insecurity, and the pandemic. Such crises transcend national boundaries and compel collective global governance (Hartley, Kuecker, & Woo, 2019). 

In such a global order marked by increased dialogue and the need for cooperation amongst nation-states, a normative framework serving as a “mode of discourse in international order” (Koh, 1997) that guides treaty regimes and addresses global concerns such as human rights, environment, and global security, is fundamental and paramount. Therefore, international law has increasingly become an indispensable and significant aspect of the international society of nation-states.

The purpose of this paper is to establish the relevance and importance of international law for India as a potent instrument that can serve to advance its strategic interests. Therefore, the paper theorizes international law as a strategic facet of national policy. It contextualizes the importance of international law through two different optics, i.e., its paramountcy in bolstering international relations and its potential of providing India with greater prominence in the global order; and secondly, its increasing significance in lawfare. 

The Twin Optic of International Relations And International Law – A Convergence of the Instrumentalist and the Normative Analysis.

Promotion of Reciprocal Relationships 

In an interdependent and interconnected world order, interests converge. Such interests can range from financial deals to security coalitions, economic development to environmental concerns, and market economy to human rights concerns. While the motivation to engage with another state or other states are various, the power to pursue such self-interests comes from international law that provides the necessary ammunition to deal with deterrence, prevention, and response to violations and gives a semblance of predictability to relations between states. Hence, international law serves to promote reciprocal and cooperative relations (Charney, 1993). 

For example, India was necessitated to introduce the Arbitration and Conciliation Act 1996, in consonance with the UNCITRAL model law in order to augment and bolster trade and commercial relationships with the rest of the world by providing a promise of uniform and fair settlement of disputes with minimal judicial intervention.  A pro-arbitration, friendly regime encourages international parties to invest in, and contract with the Indian parties, thereby accentuating India’s growth in the global market (Rendeiro, 2011).

Furthermore, normative compliance with international law is essential to maintain a state’s reputation amongst other states. Reputation determines how other states perceive the future behaviour of a contracting state party. Hence, reputation has direct implications on the decision of a state, state organisation, or private entity, to enter into a contract with another state party or not. Therefore, in pursuit of self-interest, when a state decides to interact with another state, a cost-and-benefit analysis is not the sole decisive factor. The previous behaviour of the state in the said subject matter and the context of the specific international legal instrument also hold primal value. A violator therefore becomes susceptible to various consequent reputation effects (Rubins, 1996). 

Compelled by the need to facilitate commerce, India introduced the Arbitration and Conciliation Act 1996. However, the domestic translation of the legislation has been riddled with a plethora of substantive and procedural issues that create several hurdles in its path to satisfy the object and purpose of its establishment. The unruly horse of the public policy exception in the enforcement of foreign awards is one such example, which defeats the purpose of opting for an alternate dispute mechanism and prolongs the enforcement of awards, in effect taking away from the pro-arbitration policy that India envisioned for itself (Mahajan, 2015).

Therefore, while the institution, and thereby compliance, of the said legislation in consonance with the model law was in India’s interest, the interaction of the law with real-life disputes did not entirely reflect the intended purpose of establishing India as a pro-arbitration regime in full effect. The detrimental effect of the same is hard to quantify, but it establishes a causal link between interest and reputation. In this example, maintaining a reputation of effective compliance has a direct bearing on advancing self-interest. This pertains to the game theory. The strategy of a player is contingent upon the expectation of the other person’s behavior. The same can be extrapolated to world politics because it is majorly premised on nothing but strategic interactions between nation-states.  Furthermore, no single nation, no matter how powerful, can achieve its objectives through unilateral action (Bilder & Koh, 1997). Therefore, they constantly need to interact with each other for the advancement of their own interests, and in order to interact and get the other party to act, they need to fulfill the other party’s expectations. Interests therefore depend on reputation and reputation in effect advances interests (Keohane, 1997).

Therefore, if India wishes to gain a permanent seat at the UN Security Council, it must also be in good standing with respect to its commitment to the United Nations’ legal instruments and commitments. However, the recent Supreme Court judgment in the case of Mohammad Salimullah and Anr. v Union of India, expounded that India was not a signatory to the Refugee Convention, and therefore not bound to comply with the policy of non-refoulement. This argument is easily refutable in light of India’s commitments under other international instruments such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). If India’s interests lie in non-compliance with the policy, the justification offered must be concrete, such as couched in the language of national security (Ranjan, 2021). India’s failure to do so exemplifies its weak interaction with international law, even when it can dictate its international standing and advance its interests. 

Gaining Prominence in the World Order 

Law is not merely a tool for forging bilateral and multilateral relations in pursuit of self-interest, but it is also a potent instrument for “modifying preferences, generating new options, persuading parties to move towards increasing compliance with regime norms, and guiding the evolution of the normative structure in the direction of the overall objectives of the regime,” (Bilder & Koh, 1997). Therefore, law can also be employed to strategically create discourses suitable to one’s needs. This is how major powers create strategic environments conducive to their own self-interests (Ganguly & Pardesi, 2007).

Moreover, India possesses the key elements to exercise such power as a South-Asian hegemon, to drive the Eastaphalian imagination of world order to major international platforms, especially when Asia’s dissent against Western law and institutions has become noteworthy in the past years. India’s observance of democracy, as opposed to China, gives it a good political standing in the West, while its observance of sensibilities regarding non-interference and sovereignty provides it with considerable credibility in Asia. Therefore, it can act as a balancer of power without threatening change in power dynamics in favor of either the USA or China (Fidler & Ganguly, 2010).

However, India has displayed little to no political imagination in shaping such a strategic milieu, owing to its abstinence from engaging with international law and employing it as an instrument to advance interests and create a conducive strategic environment. India alongside South Africa, displayed a welcoming stance in challenging the TRIPS obligations in light of the COVID-19 pandemic in order to address the shortage of vital life-saving supplies. However, shortly after, India abandoned its own proposal (Devarakonda, 2022).

Therefore, while international law can help in engaging self-serving international cooperation, while also holding immense potential for creating a conducive strategic environment, India has not displayed an active vigour for engagement with international law. In fact, its disengagement has impeded its greater potential.  It is a party to several international instruments, and it recognizes basic necessary laws pivotal to facilitate international engagement, yet it falls short of actively using, enhancing, effectively complying with, or weaponising international law to serve its purpose. 

The Growing Prominence of Lawfare and India’s Need to Employ it 

The term ‘lawfare’ has been used abundantly and in a myriad of ways by several international scholars. It has mustered multiple meanings depending upon the context of its use. It has been used to define the misuse of law by the West, and it has also been employed to explain the strategies of law used by weak states to counter the power of stronger states (Sang YK, 2020). However, a value-neutral analysis of lawfare in most scholarships suggests that lawfare is a viable instrument of statecraft to gain an advantage in a potential or ongoing conflict (Logan, 2017). In Unrestricted Warfare, the authors envision lawfare as the use of international law to propel material changes in the strategic arena in order to substitute the need for direct military action (Liang & Xiangsui, 1999).

Orde Kittrie in his book, Lawfare: Law as a Weapon of War, states that lawfare is a substitute for military means used either through employing legal tools to enforce legal obligations onto other states in order to fulfill a strategic goal, namely instrumental lawfare; or impress upon the adversary’s greater obligation to law in order to gain an asymmetric advantage, namely compliance-leverage disparity lawfare (Kittrie, 2016).

The former can be exemplified by the UK’s success at derailing Russia’s attempt to send helicopter gunships to Syria’s Assad regime via the sea route. Instead of deploying force that could have been a precursor to Russian aggression against the UK, they instead had the ship’s insurer, namely London’s Standard Club withdraw the insurance of the ship carrying the cargo. This resulted in the cargo being turned around and returned to Russia. The latter can be illustrated through the placement of military assets around schools, religious sites, and hospitals by the Taliban militia in order to deter attacks, such that any attempted attack near their military sites creates a death hazard for civilians, a legal violation most states would not want to be accused of, thereby creating a legal sanctuary (Kittrie, 2016). 

It is evident that lawfare is a viable strategy that has been and is being employed by various actors around the world. Lawfare in itself is value-neutral, as has been iterated above by several scholars. Only in the context of its employment and usage, a value judgment can be accorded to it. Irrespective, lawfare as opposed to warfare provides an avenue for the attainment of strategic goals without the need to deploy military measures, which in effect reduces the human and economic costs attributable to traditional warfare (Dunlap, 2008).

Furthermore, recourse to a legal framework in order to act or justify an act sustains a state’s reputation which, as has been expounded in the previous section, is ideal for the maintenance of international relations, which in turn serve the state’s self-interests. Moreover, with the adversary choosing to engage in lawfare as opposed to warfare, recourse to traditional warfare in all probability shall be viewed as an unprovoked armed attack in violation of Article 2(4) of the UN Charter. 

The Russian aggression in Ukraine did not only come with heavy military, financial, and human costs to Russia but it also made it susceptible to international isolation. In contrast, Ukraine, although it bore the brunt of aggression and witnessed the uprooting of its civil society as it knew it, tacitly employed lawfare to undermine its adversary, Russia (Ranjan, 2022). 

India has been subjected to lawfare and warfare alike, as is shown in the below-mentioned examples:

United States’ Threat of Sanctions Under CAATSA yo Deter India From Importing Iranian Oil. 

CAATSA stands for ‘Countering America’s Adversaries through Sanctions Act’, which is an American law instituted to impose sanctions on third-state parties who engage in transactions with targeted states like Iran, North Korea, or Russia. In 2019, USA made it clear that any Indian company importing oil from Iran would make itself susceptible to severe sanctions such as a freeze on Dollar transactions and their U.S. assets. The response of the Indian government to the same was to cave into the threat by zeroing out on oil imports from Iran, even when initially New Delhi had vowed to ignore the unilateral sanctions regime and had promised continuity of its oil intake from Iran (Editor, 2019). 

Either way, against an evident lawfare strategy of the United States, India abstained from counter-lawfare even when international law provided enough ammunition to do so. Chapter VII of the UN Charter only envisages collective action. Hence, unilateral sanctions exist outside the ambit of the UN Charter. More so, the US has previously been condemned for similar unilateral coercive sanctions, for example in the case of Cuba, on the grounds of violation of international obligations under the Charter such as the one enshrined in Article 2(7) which stipulates the principle of non-intervention in the internal affairs of other state. (Resolution, 2018).

Border Conflicts

China has been operating with lawfare extensively and thoroughly for the past decades, and its lawfare strategies have been identified by various scholars including Orde Kittrie (Kittrie, 2016). India especially needs to be concerned about Chinese legal maneuvers in Maritime conflicts. The Chinese attempt at appropriating interpretation of international law in accordance with its own interests not only creates a space for a legal justification of its actions, but also psychologically manipulates its adversaries into believing that its actions are justifiable (Singh, 2013). 

While India is yet to empower itself with the same capability as China to employ legal ammunition for its strategic interests, it has so far failed to even couch the justifications of its actions in terms of international legal vocabulary, even when it could have been enunciated in the simplest of legal arguments, such as the breach of article 2(4) of the UN Charter. This has been true for India’s failure to address China’s border transgressions, which China justifies through its new border law (Ranjan, 2022), and it has been equally true for India’s failure to invoke the right of self-defense in the surgical strikes following the Pulwama attack. While India suspended the Most-Favoured-Nation (MFN) status of Pakistan, it failed to justify it in the name of national security, even when it is a recognized exception for the waiver of MFN obligations (Ranjan, 2021).

Conclusion 

International Law provides avenues for bilateral and multilateral cooperation while simultaneously bestowing the same with a semblance of predictability and stability. Moreover, it has been used as a powerful tool to create a conducive strategic environment to advance a nation’s interest. Therefore, international law holds immense potential for driving a state’s interest if only the state knows how to use it. India, so far, has abstained from tapping the potential of international law, while its fellow states have considerably accelerated its usage, for their own interests, sometimes even undermining India’s interests along the way. The continued disengagement with International Law is impeding its potential to effectively create a greater space for itself in the international fora. India should invest in the study of international law, and it must consequently employ it for its own policy advancements. 

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Shalvi Ponwar is a final year student at Jindal Global Law School.