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Balancing the language of international law and the language of domestic legitimacy – How well does India fare?

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Indian Journal of International Law

Abstract

States employ the ‘language of international law’ in communicating with other subjects of international law – to assert international legitimacy for their actions, to allege international illegitimacy in the conduct of other States, and to influence the evolution of international law. At the same time, States also communicate with their own domestic constituencies, invoking domestic considerations for legitimacy and acceptance. Often, it is impossible to separate the two channels of communication, and the test-stones of legitimacy on the international plane may be in direct contradiction with those of legitimacy on the domestic plane. As such, it is important for States to balance the two sets of communications so as to avoid conflicts between their communications in the language of international law and those in the language of domestic legitimacy, or at least to recognize and strategically manage conflicts where they are inevitable. In this paper, we examine statements made on behalf of the Government of India in 2014 and 2015, on matters connected to international law, to ascertain how well India balances the language of international law with the language of domestic legitimacy in its communications.

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Notes

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  4. See, e.g., Constitution of India, Art. 51(c).

  5. One example may be India’s attempt to seek international legitimacy for its food security program by linking it to the international agenda of the Food and Agriculture Organization and other international efforts in this direction. Ministry of Agriculture, India Looks Forward to Active Participation of FAO to Meet Challenges in Agriculture – Radha Mohan Singh, 8 Sept. 2014, <http://pib.nic.in/newsite/PrintRelease.aspx?relid=109456> (accessed 11 November 2015).

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  30. Ibid.

  31. Ibid.

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  38. Continental Casualty Company v Argentina, Award, ICSID Case No ARB/03/9(5 September 2008) [252]; El Paso Energy International Company v Argentina, Award, ICSID Case No ARB/03/15 (31 October 2011) [392–396].

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  40. Temple of Preah Vihear (Cambodia v Thailand), Judgment, [1962] ICJ Rep 23.

  41. Martti Koskenniemi, From Apology to Utopia – The Structure of International Legal Argument (CUP, Cambridge, 2006) 48–50.

  42. Panel Report, India – Quantitative Restrictions, WT/DS90/R [3.140].

  43. Military and Paramilitary Activities (Nicaragua v United States), ICJ Rep (27 June 1986) [64–65].

  44. Ibid.

  45. Ibid.

  46. Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews [312].

  47. Statement by Mr. Ravi Shankar Prasad, Joint Secretary (Climate Change), Ministry of Environment, Forest & Climate Change, at the High Level Event on Climate Change in New York (29 June 2015) <https://www.pminewyork.org/adminpart/uploadpdf/56342Stmnt%20at%20HLE%20Climate%20Change%20on%20June%2029,%202015.pdf> (accessed 9 November 2015); Statement by Mr. Nirupam Sen, Permanent Representative, On The Relationship between Energy, Security and Climate at the UN Security Council (17 April 2007) <https://www.pminewyork.org/pages.php?id=732> (accessed 9 November 2015).

  48. English Rendering of the Statement by Prime Minister, Shri Narendra Modi at the General Debate of the 69th Session of the United Nations General Assembly (UNGA) (27 September 2014) (emphasis supplied) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=110091> (accessed 9 November 2015).

  49. Text of Statement Made by MoS for Environment, Forests and Climate Change Shri Prakash Javadekar, at United Nations Climate Summit 2014 (24 September 2015) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=110091> (accessed 9 November 2015).

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  51. Text of the Intervention Made by Minister for Environment, Forests and Climate Change Shri Prakash Javadekar during Major Economies Forum Meeting at New York on 22nd September, 2014 (23 September 2014) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=109900> (accessed 9 November 2015).

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  55. Green India Mission Plans of Four States Approved (12 October 2015) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=128649> (accessed 9 November 2015).

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  58. Government Has Established National Adaptation Fund on Climate Change: Javadekar (4 August 2015) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=124326> (accessed 9 November 2015).

  59. Government Has Taken Several Measures to Minimise the Impact of Air Pollution: Javadekar (6 August 2015) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=124460> (accessed 9 November 2015).

  60. Government Has Initiated Several Measures to Increase Forest and Tree Cover: Javadekar (4 August 2015) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=124322> (accessed 9 November 2015).

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  63. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India), ICJ, Order of 16 June 2014.

  64. Art. 36(1), Statute of the ICJ.

  65. Press Trust of India, Centre Takes a U-turn, May Approach ICJ over Captain Saurabh Kalia Torture Case, The Indian Express (2 June 2015) <http://indianexpress.com/article/india/india-others/india-to-approach-international-court-of-justice-over-captain-saurabh-kalia-torture-case/>.

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  84. Panel Report, India – Solar Cells.

  85. Panel Report, India – Agricultural Products.

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  87. Statement by Nirmala Sitharaman Regarding India’s Stand in the WTO (28 November 2014) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=112127> (accessed 9 November 2015). ‘We were able to achieve a breakthrough because we were negotiating from a position of unassailable strength in the interests of those vulnerable sections who have no voice. A just cause, clearly articulated and backed by the strong leadership of our Hon’ble Prime Minister, made for a compelling argument.’

  88. WTO Appellate Body Accepts Major Indian Challenges to US Countervailing Duties on Hot Rolled Carbon Steel Flat Products Exported from India (9 December 2014) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=112944> (accessed 9 November 2015); Ban on Import of Poultry Products from United States (27 February 2015) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=116086> (accessed 9 November 2015); Dispute Case at WTO over Solar Mission Programme (12 August 2015) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=124892> (accessed 9 November 2015).

  89. Centre Discusses Sugarcane Arrears Issue with the State Governments (16 April 2015) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=118286> (accessed 9 November 2015); Effective Management to Contain Prices of Essential Commodities (23 December 2014) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=113925> (accessed 9 November 2015).

  90. Gazette of India (Extraordinary) No 326, 7 May 2014; Gazette of India (Extraordinary) No 394, 11 June 2014; Gazette of India (Extraordinary) No 412, 8 August 2014.

  91. Art. 3.1(a) Agreement on Subsidies and Countervailing Measures, 1869 UNTS 14 (1994); Art. 8, Agreement on Agriculture, 1867 UNTS 410 (1994).

  92. Dilasha Seth, Government May Challenge World Trade Organization’s Order to Lift Ban on US Poultry Imports, The Economic Times (20 January 2015) <http://articles.economictimes.indiatimes.com/2015-01-20/news/58267697_1_chicken-legs-poultry-imports-american-poultry>.

  93. Art. 2.2. Agreement on the Application of Sanitary and Phytosanitary Measures 1867 UNTS (1994) 493.

  94. Ibid, Art. 2.3.

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  1. Sidley Ausin LLP, Geneva, Switzerland

    Deepak Raju

  2. Parliament of India, New Delhi, India

    Zubin Dash

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Correspondence to Deepak Raju.

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Deepak Raju is an Associate at Sidley Ausin LLP and Zubin Dash is a Research Fellow at Lok Sabha. The authors thank Mr. Scott Andersen (Sidley Austin LLP), Mr. Todd Friedbacher (Sidley Austin LLP), Ms. RV Anuradha (Clarus Law Associates), Dr. Surabhi Ranganathan (University of Cambridge), Dr. Prabhash Ranjan (South Asia University) and Ms. Rukmini Das (University of Geneva) for their comments. The views expressed herein are personal to the author and do not represent those of Sidley Austin LLP or its clients.

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Raju, D., Dash, Z. Balancing the language of international law and the language of domestic legitimacy – How well does India fare?. Indian Journal of International Law 57, 63–85 (2017). https://doi.org/10.1007/s40901-018-0076-9

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