JFIEL Conference 2023

Making International Law Relevant: Promises and Challenges for India

Image: James Gillray, The Plumb-Pudding in Danger

A Foreword: Our 2023 Conference

International law historically played a troubling role in the colonial oppression to which India was subjected. Nonetheless, postcolonial India has not supported a “rejectionist stance” towards international law, and has instead sought its transformation in order to “manifest the aspirations of its people and…the decolonized world” (Bhupinder Singh Chimni). Given India’s position as the world’s largest liberal democracy, one validly expects it to “play the role of protagonist in the remaking of international order” (Prabhakar Singh). 

Unfortunately, that imagination remains far from reality, prompting laments that “India has lost its way in the use of international law” (Prabhash Ranjan). By picking up any newspaper daily, one can realise from the absence of international legal commentary that the field is distant from popular discourse (Aman Kumar). Pedagogues in Indian classrooms find that their students perceive the field to be “outside the immediate domain of relevance” and rather of concern only to those seeking to inhabit its mainstream locations in the West (Rohini Sen). Similarly, India’s institutional activity and inactivity in its international legal engagements are plagued by a “culture of opaqueness” that ultimately discourages “those of us who study international law” (Shantanu Singh). 

This is concerning not only from the perspective of the Indian state’s own strategic interests but also the voices of communities that are marginalised in India. Through vocabularies like human rights, international law offers a “potency” in articulating the claims of those “failed by their domestic constitutional law framework” (Mahima Balaji). As such, the field promises frameworks for confronting the “egos and insecurities of Statist claims” (Swati Singh Parmar). In doing so, it creates possibilities for “a glimmer of hope”, which is essential in galvanising action (Aman). It then becomes the responsibility of those conversant with international law to support capacity building to that end (Aashish Yadav). In the end, “only strong academic engagement and scholarship in India can resuscitate” such potential of the field (Arun Mohan Sukumar). 

As a student-led platform emerging from India, we have been conscious of this responsibility of reflecting on the “relevance” of our efforts. This guided us to our very first Conference initiative in 2023, featuring undergraduate students from within our university and others across the country, to together reflect on “Making International Law Relevant: Promises and Challenges for India”. From 7th to 10th April, we were delighted to hear the compelling pitches of many peers who spoke on several different topics, with one common thread: their hope for supporting an ‘Indian voice’ in international law-making, or similarly, to converse on the promises or relevance of international legal vocabularies in local discourses. 

As a young forum, we were indebted to be joined by stellar guest lecturers, including Hon’ble Former Chief Justice of India, U.U. Lalit, Professor (Dr) Prabhash Ranjan, who is presently an Associate Professor at South Asian University, and Professor Shailja Singh, who is engaged as a Legal Consultant (Associate Professor) affiliated with the Centre for WTO Studies, Delhi. 

This symposium draws from the discussions held in this unique yet timely space, highlighting six of the most persuasive papers we received from our student participants, and as its opening piece, the reflections of Justice Lalit on the theme. 

Introducing the 2023 Symposium

In light of the current perception of international law within India, “domestic judges [usually] do not see their work as creating state practice” (Shubhangi Agarwalla), even when it is actually of significance to international legal concerns. Departing from this trend, Justice Lalit’s insights from his address offer us immense perspective as to the prevalence of issues of international law in the Supreme Court’s dockets, ranging from widely debated controversies like the Enrica Lexie incident to less discussed matters like admiralty jurisdiction questions and the conflict of laws. 

Turning to our student contributions, we are honoured to feature six distinct pieces addressing different aspects of the “relevance” of the field to the Indian context. We first feature two pieces that continue our blog’s efforts towards centring the lived experiences of marginalised voices in international legal discourse. Aishwarya Alla, a third-year student at Jindal Global Law School, writes on ‘The Case for Cultural Genocide: Adivasi Ailments’. Aishwarya highlights the suffering of Adivasis amidst their mass displacement owing to mining projects in the states of Chhattisgarh, Jharkhand, and Odisha, and deploys this context in arguing for an expansion of the understanding of the crime of genocide. Faizan Ahmad, a fifth-year Jindal Global Law School student, writes on ‘India, Citizenship and TWAIL’. Tracing prior TWAIL scholarship, Faizan seeks to position international law as an “alternative language of arguing about state power and discretion in producing statelessness” in India. 

As regards the strategic interests of the Indian state, we hear from Shalvi Ponwar, a fifth-year student at Jindal Global Law School. In ‘The Triangle Of Prominence: International Law, International Relations And Lawfare’, Shalvi argues for greater deference to “lawfare”, such that India progresses towards “using, enhancing, effectively complying with, or weaponizing” international law. We then hear from Khushi, a third-year student at the National Law University, Jodhpur, in ‘India’s Surgical Strikes: Implications for State Practice and Self-Defence’. Setting the context of modern warfare in the 21st century, Khushi inquires into India’s surgical strikes in Uri and Balakot, problematising their implications on the law on the use of force generally and particularly for India’s own position on the matter. 

We then feature ‘Challenges for Bilateral Investment Treaty Disputes in India’ authored by Muskan Agarwal, a second-year student at Jindal Global Law School. Tracing several recent controversial proceedings on the issue, Muskan highlights the challenges faced by India with respect to the enforcement of international arbitration awards, while also proposing solutions for addressing this recurring concern. Finally, we hear from Sejal Gupta, a third-year student at Nirma University, in ‘Cloud Computing: Interplay of National and International Laws vis-a-vis Jurisdiction, Contract and Privacy Laws’. Highlighting the complexity of jurisdictional issues in international cybercrime against data stored on the cloud, Sejal discusses strategies for addressing this threat using both the domestic Indian framework and international law. 

This small yet impactful initiative was one of the many ways in which we seek to respond to our responsibilities as the editors of a Global South origin blog in “making international legal spaces inclusive, accessible, and representative” (Abhijeet Shrivastava and Aryaman Kapoor). We look forward to your thoughts and reflections on the contributions featured in this symposium and any suggestions on similar initiatives that we could pursue in the future. 

Acknowledging our Gratitude

For a blog now entering only its fourth year of operation, a niche initiative of this scale could not have been possible without the input and labour of many actors. Given their guidance in helping us navigate the administrative aspects of hosting our first-ever initiative of this kind, as well as the conception of this theme, we are indebted to Professor Padmanabha Ramanujam and Professor (Dr) S.G. Sreejith. Similarly, we thank our Faculty Director, Professor (Dr) Pallavi Kishore, and our Faculty Advisor Professor Aman for their constant support and encouragement with the conference. Furthermore, we acknowledge our gratitude to SCC Online for joining us as the exclusive media partner for the event, thus helping us reach a much wider audience. 

For joining us as distinguished speakers and delivering uniquely insightful lectures on the theme from their perspectives, we are grateful to Hon’ble Justice Lalit, Professor Prabhash Prabhash Ranjan, and Professor Shailja Singh. Our thanks are owed to Professor Aashish Yadav for sharing his reflections on the takeaways from Justice Lalit’s address. We are also grateful to Professors Aman, Sanskriti Sanghi, Raphael Pangalangan, and one of our Co-Founders, Mr Pushkar Reddy, for joining as Moderators of the four panels hosted as a part of the conference. It was their thoughtful engagement with each panellist that created a safe space for our student speakers to share constructive dialogue. 

Similarly, we are grateful to Professors Samira Mathias, Mahima Balaji, and Aashish Yadav for their guidance in selecting the ‘best papers’ (featured in the symposium) from the dozens of pitches we received. We also felt fortunate to have had the patience and support of many administrative staff from the university during the conference. Of course, to all of our contributors and participants in the conference, we remain grateful for your trust and presence. 

Gratitude also extends to all members of our own team. We were happy to always be able to count on the perseverance and enthusiasm of Aryaman Kapoor, Tamanna, Khush Aalam Singh, Prajwal Totla, and Arundhatti Ojha. Perhaps the most delightful moment for us was being able to welcome back Mahima Balaji, our forum’s Co-Founder, as a faculty member guiding our efforts in a new capacity. In closing the conference, and marking the end of our tenure as the forum’s Editors-in-Chief, we were similarly grateful for being able to trust its very promising future to our successors: Aryaman and Tamanna. We cannot wait to see how our future teams continue the blog’s spirited interventions in the field. 

Signing off, with our warmest regards to the forum, its mentors, and supporters,

Abhijeet Shrivastava and Rishav Sen
(Editors in Chief, 2022-23)

JFIEL’s Picks

We thank our brilliant contributors who presented these papers at Jindal Global Law School in April 2023, and our editorial team for revisions and modifications.

Prof. UU Lalit, Transcribed Speech from the JFIEL Conference

Transcribed speech of Prof Lalit from the JFIEL Conference concluding ceremony that took place on 10th April 2023.

Read here.

Aishwarya Alla, The Case for Cultural Genocide: Adivasi Ailments

[Panel II].

Adivasi (“original/first inhabitant” in Hindi) refers to the indigenous communities of India. Much of the Adivasi populace in Jharkhand, Chattisgarh, and Odisha have historically resided in mineral-rich forest areas, meaning that this ancestral land has been marked by the Ministry of Commerce and Industry and minerals industry key players like Bhushan Power and Steel Ltd. and the Adani Group. Adivasis continue to face state-sponsored industrial prejudice leading to mass displacement and conditions detrimental to the continuation of their group identity. This is not considered a genocide based on current interpretations of the Convention on the Prevention and Punishment of the Crime of Genocide (UNGC) because this requires the physical destruction of the group in part or in whole. This paper argues that this interpretation of the UNGC is unjustifiably narrow and disadvantageous, non-aligned with the intent of the drafters nor with the actual text of articles 2(b) and (e). It proposes that theoretically, “cultural genocide” as a wrongful act could be interpreted to be within the ambit of the existing Convention through Art. 2(b) and (e). This textual interpretation is necessary for the continued viability of Adivasis in India and would facilitate a discussion about state and individual responsibility with reference to human rights violations committed by the modern-day industrial-state complex.

Read here.

Faizan Ahmed, India, Citizenship and TWAIL

[Panel II].

In recent years there has been an emerging consensus that India’s relationship with international law has been that of  ‘creeping monism’. In interpreting fundamental rights, Indian courts have been inclined to apply international law obligations. On the other hand in matters of refugee rights or citizenship, petitions have been summarily dismissed without engaging with India’s international law obligations. In this backdrop, India’s Citizenship Amended Act (CAA) and National Register of Citizens  (NRC) recently became a discussion point in various reports highlighting India’s international law obligations to prevent statelessness. This essay does not intend to reiterate the same. However, mainstream international law discourse on India’s manufacturing of statelessness fails to consider India’ jurisprudential tradition of both international law and citizenship as one inherited from its colonial order. This essay builds on TWAIL scholarship to uncover the colonial inheritances of citizenship law, as well as the majoritarian anxieties of the post-colonial state. It is thus argued that such historical and political enquiries must inform responses to India’s statelessness problem under international law. Finally, the challenge to the CAA at the Supreme court indicates another opportunity for international law argumentation in court. Such an opportunity, for international law, is not one to be missed under the garb of realism, but to be exploited. Using the framework by Monica Hakimi, this essay attempts to show why we should ‘care about international law’ and not measure its relevance only by its efficacy in producing state obedience. Rather it could be helpful as an alternative language of arguing about state power, or perhaps even towards achieving material outcomes.

Read here.

Shalvi Ponwar, The Triangle Of Prominence: International Law, International Relations And Lawfare

[Panel III].

In the wake of contemporary challenges, ranging from climate crisis and migration to mass destruction weaponization and use of force in another sovereign territory, the international world order is necessitated to seek recluse in an international normative framework and forge alliances to combat the challenges it faces. Therefore, international law and international relations become intertwined facets of policy consideration for respective states. The former has historically proven to be a conducive tool to address intractable political conflicts while the latter dictates strategic interactions between states which are necessary to forward a state’s self-interests. In such a scenario, the disinclination of the Indian State to engage with and imbibe international law principles domestically, posits a major roadblock in its path to seek international prominence while also inhibiting its ability to address conflicts efficiently through international law. This paper shall engage with the triplet optics of international law, international relations and lawfare to emphasize the relevance of international law for the Indian regime.

Read here.

Khushi, India’s Surgical Strikes: Implications for State Practice and Self-Defence

[Panel III].

The Uri and Balakot surgical strikes led by Indian forces in the year 2016 and 2019 respectively have important implications from the perspective of international law. Even though it was not explicitly mentioned in the language of international law, in the official statement and from the overall position of India vis-à-vis such strikes, the doctrine of self-defence indeed comes into picture as a justification for the strikes. This paper attempts to traverse through the same. In the first part, the author discusses how warfare in the 21st century has evolved from its previous antiquated form and how the importance of self-defence as a justification for use of force has gained ground. In the second part, the surgical strikes conducted by India are discussed in light of the right to self-defence, i.e., whether or not they constitute a valid example of State practice that can contribute to an evolution of the customary international law on self-defence. In the third portion, the Indian position at Arria formula meeting is dissected to understand its relevance. The paper also discusses the stance of other States on the same. Finally, the author analyses the implications of such positions and how they will affect India’s position generally.

Read here.

Muskan Agarwal,, Exploring the Challenges for Bilateral Investment Treaty Disputes

[Panel IV].

Enforcing international arbitral awards has always been a challenge in India. Similarly, India has not successfully developed a model that would protect international investment treaties and the centre’s right to regulate or reduce arbitral discretion. India is one of the fastest-growing global economies with an increase in FDIs and BITs. With such an increase in FDIs and BITs, arbitration proceedings often follow suit. The present model of the BIT agreements favours the host state which makes it difficult for foreign investors to deal in the country. India is not a signatory to the ICSID convention as it has always been the view of the supremacy of its court, which would be compromised if it were a signatory of the ICSID. India has always intervened with foreign arbitral awards and this paper will analyze the challenges, India faces when it comes to Bilateral Investment treaties and arbitration proceedings. The challenges will be further discussed by analyzing the cases of the White Industries Award, Antrix v. Devas deal and the Vodafone controversy among many more. The paper will finally be concluded by putting forth the possible solutions India could implement in its model for smoother enforcement of international arbitral awards in India.

Read here.

Sejal Gupta, Cloud Computing: Interplay of National and International Laws vis-a-vis Jurisdiction, Contract and Privacy Laws

[Panel III].

This paper addresses the changing nature of storing information and the complexities of risks owing to data privacy due to service providers being subject to both national and international laws. From storing information on compact disks to memory sticks to now even google drives, this concept of accessing information on remote servers using any Internet-enabled platforms called cloud computing has been analyzed in this paper. The author tries to gauge the jurisprudence behind cloud computing being a grey area by signifying the territorial principle being classified under both subjective and objective aspects for extraterritorial jurisdiction to be applicable to cybercrimes taking place across international borders. The key characteristic of sharing of storage resources based on a pay-per-use business model have a direct relation with privacy and data protection. It is emphasised that the problem is not data infringement but how to fight the same due to the ambiguous state of jurisdiction that each state possesses. The cloud computing paradigm is subject to both national and international legislation, and public and private legislation. The piece concludes by considering whether cloud computing and the interplay of various laws harms the spirit of technology or has it been dramatized to a great extent.

Read here.