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INDIA’S APPROACH TOWARDS ADJUDICATION BEFORE THE

INTERNATIONAL COURT OF JUSTICE AND INTERNATIONAL

CRIMINAL COURT: IN SEARCH OF UNIFORMITY

ABHINAV MEHROTRA

amehrotra@jgu.edu.in

Assistant Professor at Jindal Global Law School (India) and Assistant Director for the Centre for

the Study of the United Nations, O.P. Jindal Global University. He teaches courses on Human

Rights Law and Public International Law to law students. Abhinav holds an LL.M. in International

Human Rights Law from the University of Leeds and an LL.B. degree from O.P. Jindal Global

University. His most recent publications focused on justifying the Right to Internet Access as a

Human Right, which has been in the prestigious Comparative Law Review, and another article

titled “Need for a National Legislation on Refugees in India at 75” was published in India

Quarterly. Also, the article “Crawford, TWAIL, and Sovereign Equality of States: Similarity and

Differences” was published in the Australian Yearbook of International Law Volume 40 (2022).

Further, a book chapter titled “Can European Mechanisms on Human Rights be Applied in South

Asia?” has been published by Springer.

AMIT UPADHYAY

aupadhyay@jgu.edu.in

Associate Professor at Jindal Global Law School (India). He teaches Constitutional Law, Human

Rights and International Law to undergraduate law students. Amit graduated with a B.A., LL.B.

(Hons) degree from Amity Law School, New Delhi. He was awarded a prestigious DAAD

scholarship to pursue further studies in European and International Law from Freie Universität,

Berlin, Germany. He has been awarded several scholarships and fellowships to participate in

academic conferences and programs worldwide by organisations like the Robert Bosch

Foundation, German Academic Exchange Service (DAAD), BMZ and Konrad Adenauer Foundation

etc. His recent publication includes a co-authored article with Assistant Prof. Abhinav Mehrotra,

titled "Child Marriage, Sexual Abuse, and Muslim Personal Law: Contestations Around Age of

Consent in Marriage in the Wake of Uniform Civil Code Debate in India", which was published in

the Manchester Journal of Transnational Islamic Law and Practice.

Abstract

India’s status as a significant world power has strengthened in the last few decades as a

member state to various international treaties and conventions. However, its practice of

instrumentalisation and withdrawal through the reservations imposed to the compulsory

jurisdiction of the International Court of Justice and the resistance to becoming a party to the

Rome Statute to join the International Criminal Court has been the subject of discussion. In

this paper, the authors discuss India’s approach to implementing the decisions arising from

international disputes before the International Court of Justice by reflecting upon the history

of its membership in the International Court of Justice and various bilateral and multilateral

disputes to which India has been a party. Based on the specific cases, different arguments

have been made to decipher the rationale behind the approach undertaken by India and the

scholarly views on whether there is a need for change in its approach to establishing

transparency about compliance with international law.

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e-ISSN: 1647-7251

VOL 15 N.º 2

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India’s Approach Towards Adjudication before the International Court of Justice and

International Criminal Court: In Search of Uniformity

Abhinav Mehrotra, Amit Upadhyay

296

Keywords

India, International Criminal Court, International Court of Justice, India and International

Law.

Resumo

O estatuto da Índia como potência mundial significativa reforçou-se nas últimas décadas

enquanto Estado membro de vários tratados e convenções internacionais. No entanto, a sua

prática de instrumentalização e retirada através das reservas impostas à jurisdição obrigatória

do Tribunal Internacional de Justiça e a resistência em tornar-se parte do Estatuto de Roma

para aderir ao Tribunal Penal Internacional têm sido objeto de discussão. Neste documento,

os autores discutem a abordagem da Índia à aplicação das decisões decorrentes de litígios

internacionais perante o Tribunal Internacional de Justiça, reflectindo sobre a história da sua

adesão ao Tribunal Internacional de Justiça e sobre vários litígios bilaterais e multilaterais em

que a Índia foi parte. Com base nos casos específicos, foram apresentados diferentes

argumentos para decifrar a lógica subjacente à abordagem adoptada pela Índia e os pontos

de vista dos académicos sobre a necessidade de mudar a sua abordagem para estabelecer a

transparência em relação ao cumprimento do direito internacional.

Palavras-chave

Índia, Tribunal Penal Internacional, Tribunal Internacional de Justiça, Índia e Direito

Internacional.

How to cite this article

Mehrotra, Abhinav & Upadhyay, Amit (2024). India’s Approach Towards Adjudication before the

International Court of Justice and International Criminal Court: In Search of Uniformity. Janus.net,

e-journal of international relations. VOL 15 N.º 2, November 2024-April 2025, pp. 295-308.

https://doi.org/10.26619/1647-7251.15.2.13.

Article received on 13 September 2023 and accepted for publication on 4 August 2024.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

VOL 15 N.º 2

November 2024-April 2025, pp. 295-308

India’s Approach Towards Adjudication before the International Court of Justice and

International Criminal Court: In Search of Uniformity

Abhinav Mehrotra, Amit Upadhyay

297

INDIA’S APPROACH TOWARDS ADJUDICATION BEFORE THE

INTERNATIONAL COURT OF JUSTICE AND INTERNATIONAL

CRIMINAL COURT: IN SEARCH OF UNIFORMITY

ABHINAV MEHROTRA

AMIT UPADHYAY

Introduction

The states adopt the formal methods of international dispute settlement as a last resort

after attempting all possible options for resolving the disputes through negotiations and

consultations (Hegde, 2016) without the need for third-party intervention. However, the

international community has attempted to bring about a mechanism through which the

State’s prior consent is obtained for certain kinds of disputes through Article 36 of the

International Court of Justice (ICJ) statute, under which certain types of disputes relating

to treaty interpretation; any fundamental questions concerning international law;

violation of international obligation and the reparation to be made based on a prior

declaration by the states (Stanimir, 2006: 29-38). In the larger interest, the states are

expected to comply with the rules of international law to the maximum extent possible.

This position was recognized in the Nicaragua case, where it was held that a rule may be

considered customary in nature without the need for compliance by the member states

in its entirety (ICJ, 1986). In this light, India’s approach to implementation of the

decisions arising from international disputes will be analysed by reflecting upon the

history of its membership of the ICJ, the disputes to which it has been a party, and its

approach to the ICJ and International Criminal Court (ICC). Based on the prior sections,

the article considers the scholarly views on whether there is a need for change in its

policy and the possible way forward.

Historically, India became part of the League of Nations before attaining independence

as British India, as it was called back then. It accepted the jurisdiction of the Permanent

Court of International Justice (PCIJ) on 19th September 1929 (Karamanian, 2007: 538-

544).

Surprisingly, India’s legal personality was independent of Britain under the Interpretation

Act of 1889 (Kemal, 1986). The reasons for granting membership to India not as a colony

but independently in PCIJ of the time were to increase the voting strength of Britain as

well as to reward the contribution of colonial India to the British and its allies during the

First World War(Chimni, 2010). It was in 1955, after India’s independence, a need to

relook at these reservations was felt when Portugal submitted a case before the ICJ

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regarding the issue of the Right of Passage over the territory of Daman and the enclaved

territories of Dadra and Nagar Haveli. During the proceedings, India raised objections

against Portugal approaching the ICJ.

The basis of the objection was that Portugal did not negotiate with India before placing

the dispute before the ICJ, which was a requirement under the 1940 Declaration (ICJ,

1957).

However, this argument was not taken seriously and was rejected by the ICJ.

Consequently, India had a serious look at the reservations placed under Article 36 (2) of

the PCIJ statute, which was recently modified on 27th September 2019, accepting

without any special agreement the jurisdiction of the ICJ under Article 36 paragraph 2 of

the ICJ Statute.

The earlier declaration was signed by India on 15 September 1974 and deposited on 18

September 1974 which replaced the previous declaration made by the Government of

India on 14 September 1959 (Patel, 2016).

In the context of this background, it can be seen that the first experience of India at the

ICJ made it realise to protect itself before the World Court or the ICJ that has contributed

to the development of numerous areas of international law such as the law of treaties,

the law of international organizations, the law of human rights,through its case laws.

However, at the same time as will be seen through this article that India continued to be

a party to the ICJ but resisted joining the ICC which also provides a forum for rule-of-

law-friendly state like India to raise its voice at the universal level to manifest their

commitment to the ideal of the rule of law.

Such an ambiguous approach has a lot to do with India’s experiences at the international

level over issues that have arisen from the municipal context that need to be further

investigated.

Municipal Law, Kashmir, and International Law

To understand the approach of India towards ICJ and ICC, the understanding of the

municipal law assumes significance. Under Article 51 of the Indian Constitution, a direct

reference has been made to encourage the use of international law and foster respect for

international law regarding treaty obligations and peaceful relations with other ations.

Article 51 seeks to encourage the Indian State to make all possible endeavours to adhere

to and respect international law. This non-binding obligation under Article 51 is read

along with Articles 246 and 253 of the Constitution (Lavanya, 2017), which deals with

demarcating the powers of the Union and the State governments for implementing

international law in the form of any treaty, agreement, or convention. The soft approach

to Article 51 is also attributed to India’s complex engagements with its neighbours on

issues such as Kashmir, which is heavily debated and continues to be a blot when India’s

engagement at the international level is concerned, and which has resulted in diversion

from other urgent challenges that India has faced since 1947 (Stunkel, 2013).

It was in January 1948 that India submitted the Kashmir issue to the UNSC, and

highlighted that military intervention by India was carried out at the request of the ruler

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of the State who executed the Instrument of Accession. The United Nations Commission

for India and Pakistan (UNCIP) was established with reference to the Kashmir dispute

between India and Pakistan between June 1948 and until March 1950. At the same time,

the UNSC Resolution 47 was adopted in 1948 and recommended to both parties solutions

that required action on the part of both. To illustrate, Pakistan was asked to withdraw

their nationals from the disputed territory, and simultaneously India was asked to

proportionally reduce their forces and to appoint a plebiscite administrator (Ahmed et al,

2021).

In the aftermath of the war between India and Pakistan in 1965, the commitment

undertaken regarding the plebiscite was done away with. The UN proposals regarding the

plebiscite were not mentioned under the Tashkent Agreement that ended the 1965

atrocities (Paranjpe, 1985).

Similarly, the Simla Agreement, signed after the 1971 India-Pakistan War on 2 July 1972,

ended the conflict and confrontation and ensured that the parties reached a mutual

agreement only through bilateral talks (Jan & Ahmed, 2022 : 546-575). In this

background, India has been forced to take a cautious approach before committing to any

binding settlement of international disputes which has led to India playing a restricted

role in the development of International law despite being one of the founding members

of ICJ as the proactive engagement with international judicial mechanisms like ICJ has

never been a priority for the government . Thus, there is no for¬mal structure to monitor

the implementation of the ICJ judgements. In this regard, further analysis of the

relationship between the ICJ and India will be carried out in the next section.

India and the International Court of Justice

It was in 1940 that India accepted the compulsory jurisdiction of the PCIJ. Despite being

a founding member of the ICJ, the literature on the relationship between India and ICJ

is scarce, which can be explained through the limited participation of India before the ICJ

as an applicant or a respondent (Patel 2016). The primary reason for such a gap is the

importance India has attached to settling international disputes bilaterally rather than

through international dispute settlement mechanisms. However, in the disputes between

India and Pakistan, there exist disputes where India approached the ICJ in 1971 and as

recently as 2017 in the Kulbhushan Jadhav case. In the 1971 Appeal Relating to the

Jurisdiction of the ICAO Council between India and Pakistan (ICJ, 1972), India filed an

appeal against the decision of the International Civil Aviation Organization(ICAO)

regarding the rejection of its preliminary observations concerning Pakistan’s involvement

in the hijacking of an Indian civilian aircraft.The ICJ rejected the Pakistani objections to

its jurisdiction and the Indian appeal and upheld the Council decision.

Similarly, to the dispute between India and Pakistan in 1971, India brought the Jadhav

case before the ICJ (ICJ, 2019). On May 8, 2017, the Government of India brought forth

the proceedings in the ICJ against the Islamic Republic of Pakistan for allegedly violating

the Vienna Convention on Consular Relations (hereinafter VCCR). This case dealt with

Mr.

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Kulbhushan Sudhir Jadhav, an Indian national, who was sentenced to death by a

Pakistani military court (Rao, 2016). The issue under consideration was that Pakistan

denied Jadhav access to the Indian consular post during his arrest throughout the trial.

In response, Pakistan raised the defence under Article 36 of the VCCR regarding its non-

applicability for persons conducting subversive activities. On 17th July 2019, the ICJ ruled

in favour of India and held its application admissible. The Court held that persons

suspected of casuing a threat to national security are not excluded from the protection

offered under Article 36 of the VCCR.

In contrast to the proactive attitude of India in bringing the ICAO dispute and the

Kulbhushan Jadhav case before the ICJ, the general trend of India’s reluctance to bring

the disputes to ICJ and at most times, India has been compelled to appear before the

ICJ to defend the case brought by the other member states such as the Indus Water

Treaty dispute, Bengal maritime arbitration, The Atlantique case, and the Enrica Lexie

case. In this light, the cases listed need an analysis to understand the manner in which

these disputes were dealt with by India.

The foremost dispute was the Indus Water Treaty case, where Pakistan initiated the

dispute settlement process after forty-five years in 2005 since 1951 (Hegde, 2005).

Initially, India opposed the objections raised by Pakistan on the Baglihar Project.

Subsequently, it came on board with the appointment of a neutral expert as opposed to

its stand on a negotiated settlement of all differences under Article VIII of the Indus

Water Treaty at the Permanent Indus Commissioners (PIC) level (Hegde, 2016). Pakistan

again invoked Article IX of the Indus Water Treaty, which deals with the Settlement of

Differences and Disputes in 2010, to resolve specific issues concerning the Kishenganga

Hydropower Project. India insisted on a negotiated settlement of these issues at the level

of the Permanent Indus Commission and opposed the creation of the Court of Arbitration

(Desai and Sidhu,2014). The Court dismissed India's objections and in its award, the

Court of Arbitration observed that Pakistan retains the right to receive a minimum water

flow from India.

Despite the Indus Water Treaty cases not being in favour of India, the next case in line

i.e. Bengal Maritime Arbitration dispute favoured India.This case was brought by

Bangladesh against India under the UN Convention on the Law of the Sea (UNCLOS) to

identify the land boundary terminus between the two states and delimit each state's

territorial sea, EEZ, and continental shelf under Article 287 of the UNCLOS (PCA, 2014).

India did not oppose the tribunal exercising its jurisdiction to identify the location of the

land boundary terminus.

However, there was a dispute regarding the issue of a grey area where a dissenting

opinion was given by Dr. P.S. Rao on the matter of law and policy regarding the creation

of such an area (Kaldunski, 2015). The Court of Arbitration in the Bangladesh/India case

stated that its grey area overlapped in part with the grey area determined by ITLOS in

the Bangladesh/Myanmar case, thus creating a 'double grey area' that may violate the

sovereign rights of the three different countries, i.e., India, Bangladesh, and Myanmar.

This case is one of the few cases where India not only accepted the jurisdiction but also

went ahead with the physical examination of the dispute to determine the terminus of

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the land boundary. As a result, India benefited and Bangladesh relinquished its claim to

a continental shelf extending beyond 200 nautical miles.

Similarly, the Atlantique case between Pakistan and India was in favour of India. This

case came up before the ICJ on 21st September 1999 through an application instituting

proceedings against India by Pakistan, that raised a dispute relating to the destruction

of a Pakistani aircraft on 10th August 1999 (Mani, 2000). Pakistan pleaded with the ICJ

to adjudge and declare that the acts of India constituted breaches of obligations under

article 2(4) of the UN Charter which deals with the non-use of force. The ICJ held that

Pakistan’s application failed to take into consideration the reservations made by India to

ICJ’s jurisdiction relating to disputes with a Commonwealth country, whereby the ICJ

would not have jurisdiction. Thus, the ICJ held that it had no jurisdiction to entertain the

dispute.

Finally, the most recent case is the Enrica Lexie Case, where India was a party to

international adjudication (PCA, 2015). On May 21, 2020, a Tribunal was established

under the United Nations Convention on the Law of the Sea that adjudicated the 2012

Enrica Lexie incident, which involved the death of two Indian fishermen at the hands of

Italian Marines. Italy had pleaded for refraining from making or enforcing any judicial or

administrative measures against the two marines, and to take all measures necessary to

immediately to ensure the safety of the marines. As per the award, the marines were

granted immunity as state officials and a right of relief at the hands of India was

pronounced in the form of compensation for the loss of life, physical harm, damage to

property, and moral harm suffered due to the incident.

Overall, whenever India has been brought independently as a party before the ICJ, the

judgment has been in its favour; the situation is slightly different when it has been

indicted as a party before the ICJ through its membership of a treaty with other members.

India as Party to a Treaty

India’s position on cases before the ICJ either as a party to the international instrument

upon whose violation the case has been brought before the ICJ or as a party who

themselves has violated the provisions of a multilateral treaty. The first case that falls

into this category is the Chagos Archipelago case (ICJ, 2019). This case originated on 22

June 2017, when the United Nations General Assembly (UNGA) passed a resolution

requesting the ICJ to discuss the legal consequences of the separation of the Chagos

Archipelago from Mauritius in 1965. The issues that were dealt with revolved around the

decolonisation of Mauritius in 1968 and the consequences under international law of the

UK's continued administration of the Chagos Archipelago.

The Indian perspective on the issue, revolved around the Mauritian Government’s formal

position of Chagos being illegally excised from Mauritian Territory and their repeated

claim over sovereignty vis a vis the Chagos. India also relied upon the understanding

reached between Mauritius and the UK in 1965, regarding the return of the Chagos when

not needed for defense purposes (Colson and Vohrer, 2015) and upon the fact that the

United Nations through General Assembly resolution 1514 dealing with the Declaration

on the Granting of Independence to Colonial Countries and Peoples, had made it clear

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that any partial attempt to violate the national unity and territorial integrity amounts to

an unauthorised act.

However, India changes its position when it is a party to a multilateral treaty and being

adjudicated before the ICJ. One such case was the Marshall Islands case (ICJ,

2016)where the Republic of Marshall Islands filed applications in the ICJ against the

nuclear-armed states, including India, for violating their nuclear disarmament obligations

under the Nuclear Non-Proliferation Treaty, 1968, and customary international law. The

issue under contention was that the nuclear states, including India, had not kept their

obligations under the Nuclear Non-Proliferation Treaty regarding ceasing the nuclear

arms race at an early date (Bhatt, 2019).

India asserted that there exists no valid legal dispute, and the ICJ lacks jurisdiction to

djudicate the case.

India raised its reservations concerning the multilateral treaty according to which the

disputes concerning the interpretation or application of the treaty could be subject only

to the jurisdiction of the ICJ if all the parties before the Court or Government of India

expressly agreed to the jurisdiction of the ICJ(ICJ, 2016). Further, India also referred to

the fact that the Republic of the Marshall Islands (RMI) accepted the Court’s compulsory

jurisdiction on 24 April 2013, one day before the 12 months set out in its reservation,

which must also lead to the rejection of the RMI’s application. Consequently, the ICJ held

it did not have jurisdiction under Article 36 para 2 of the Statute to deal with this case(ICJ,

2016).

The ICC and India

With the rise of the new millennium, the entry of the Rome Statute on July 1, 2002,

brought about a significant change in international dispute mechanisms (Bharadwaj,

2003). Although, the ICC does require the sacrifice of sovereignty by a member state if

it refuses or fails to use its national mechanisms against those who commit crimes against

humanity, Genocide, War crimes, or Crime of Aggression. With the existence of the

principle of complementarity, the importance of national courts over the ICC is

established. Through this principle, the ICC ensures that their respect and trust towards

national judicial systems remain intact (Ramanathan, 2005). This has been made

possible by restricting its jurisdiction to the most severe crimes of concern to the

international community (Rosenne, 1999).

Regarding the Indian perspective toward the ICC, during the negotiations for adopting

the Rome Statute, it always favoured having an international court to investigate,

prosecute, and sentence the individual committing heinous crimes. In contrast to its

stand, India declined to vote in favour of the Rome Statute in 1998, citing the variance

between what was envisaged and how it subsequently developed and came into

being(Hall and Jeferry, 2021). On issues like the ICC’s mandate of exercising inherent

jurisdiction, over armed conflicts not of international character further distanced India

which was accompanied by the exclusion of international terrorism from the crimes

covered by the ICC (Banerjee, 2011).

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In practice, India’s reluctance to accept the inherent jurisdiction of the ICC is linked with

how an international court will carry out prosecution, and criminal proceedings in the

Indian system.

On the other hand, the concern regarding the inclusion of armed conflict not of an

international character is linked to the conflicts that persist in Kashmir. There are

apprehensions that if India ratifies and becomes a member state, the ICC will attempt to

embarrass India on the Kashmir issue by making a case out of the violence (Lahiri, 2010).

An often talked about issue in India that does not find a place in the Rome Statute is

terrorism, possibly due to the absence of an internationally acceptable definition of

terrorism. It is believed by many countries that terrorism is an individually driven project

that private individuals carry out in an isolated and not widespread or systematic

manner(Golder and George, 2004). This stand of the ICC was apparent in the First Review

Conference in Kampala, Uganda, in 2011, where India continued to protest the lack of

ICC's jurisdiction over the crime of terrorism. In addition, India's insistence on including

the first use of mass weapons, especially nuclear weapons, went unheeded through a 'no

action' procedural resolution.

Lastly, the issues that have prevented India from becoming a part of the ICC are the

power of the UNSC to refer the case to the ICC and the powers vested with the Prosecutor

to initiate proceeding on their motion, i.e., proprio motou. As per the Indian perspective,

the Vienna Convention on the Law of Treaties 1969 was violated by compelling the States

to accede or be bound by treaty provisions without their consent. On the contrary,

however, there is the presence of the complementarity principle under Article 17 of the

Rome Statute that states that only in cases of a total collapse or a substantial collapse

of the national judicial system, the ICC will exercise jurisdiction.

Coming back to the case of Proprio motou, which refers to powers vested with the

Prosecutor to initiate proceedings on their motion, under Article 15(3) of the Rome

Statute. India's objection in this regard is that the sovereign authority of the states on

the one hand must be safeguarded and the role of a prosecutor on the other hand should

not interfere by initiating investigations suo moto and trigger the jurisdiction of the

court(Olasolo, 2003). These objections do not hold ground as under the Rome Statute,

as the authorisation from the Pre-Trial Chamber is required to initiate any sort of

investigation by the Prosecutor. The above discussion on India’s position on ICC reflects

the continuation of colonial selectivity in a post-colonial context.

Scholarly Views on India’s Attitude Towards the International Law and

Adjudication

In light of India’s attitude towards the ICJ and the ICC and the overall significance of the

ICC and ICJ, it is vital to understand from a scholarly point of view regarding the attitude

of India as a member state before both these bodies. This analysis relates itself to the

development of international law as modern international law as it has shaped the policy

and orientation of countries like India, which gained independence from the British

empire and excluded several countries under the garb of the standard of ‘civilization’ that

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was put forth as a criterion to justify the exclusion of the peoples of Africa and

Asia(Anghie, 2005) from the ambit of international law.

At the same time, some scholars in India have pointed out the need for more institutions

and procedures to adjudicate international disputes (Anand, 2004), some of which

include the ad hoc nature of arbitration courts and the ineffective utilisation of the

Permanent Court of Arbitration. For example, Professor R. P. Anand points out that in the

Canal Water dispute of 1950, due to the inefficiency of the international dispute

mechanism, India had advocated for a tribunal consisting of judges from both countries

and allowing arbitration or referring the matter to the ICJ in case no amicable solution is

reached(Anand, 1961). This case dealt with the disruption caused to the irrigation system

of Punjab province post-partition as on 1 April 1948, India stopped the water flow to put

pressure on Pakistan.

Most recently, in November 2021, international law practitioners and scholars were

concerned about India’s inability to utilise its inherent strengths in creating international

jurisprudence and play an essential role in International law-making. Being the largest

democracy in the world, it has instead played a limited role in framing international law-

making in the past few decades. The scholars and practitioners of International law have

petitioned the Ministry of External Affairs, Government of India (MEA) for more

transparency in international law with an aim to ensure more significant documentation

of the State practice regarding policy interventions and treaty decisions (Agarwalla,

2021). It is particularly important as most international forums including the ICJ and

ICC heavily rely upon customary international law as a source of authority while

adjudicating disputes, resulting from general state practice accepted as law by the states

contributing to the universalisation of international law. The petition notes that the lack

of state practice from India and the Global South has led to increased reliance on

scholarship and norms set in the Global North devoid of the context and geographical

relevance for the region, leading to international law continuing to remain euro-centric

with marginal participation of the states from the Global South. The MEA was requested

to curate the state practice that allows scholars and international law practitioners to

understand its decision-making systems and processes, allowing them to study its impact

on laws domestically and internationally through public consultations and deliberations.

As India’s approach to international law development has been primarily reactive since

its independence, as it mainly adopts defensive positions to negotiate many proposals

and initiatives originating from other nations without clearly spelling out its interests.

Many scholars and commentators have started questioning India’s reluctance to engage

with international law because there was a need for pluralistic, community-led bottom-

up approaches rather than formalistic ones involving not only academic experts but also

government officials, law practitioners, and members of civil society organisations

(Sukumar, 2018).

In this context, the scholars have pointed out the relevance of Third World Approach to

International Law (TWAIL) for India to strenghthen its voice at the international forums

like the ICJ and ICC. Historically, TWAIL emerged as a response to the decolonization

and end of direct european colonial rule over non -Europeans.(Mutua, 2000) It developed

as an approach to dismantle the prevailing norms that benefit the powerful few to offer

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a life of dignity for the poor, deprived ,oppression and subjugated in the Third World.

(Chimni, 2007) Generally, the TWAIL movement works towards the reconstruction of

international law by developing an alternative legal framework that would form the basis

of an equal and fair world. (Okafor, 2005). TWAIL as a school of thought highlights the

thought process of TWAIL scholars about the existing state of international law and what

it should aim to achieve by putting forth the concerns of the Third World including India.

Through TWAIL, India must put forth the views on international bodies like the ICJ and

by joining the ICC to shed light on the asymmetries and post-colonial continuities of

international law resulting in subordination and subjugation of the States of the so-called

Global South by international law and international organisations.

By putting forth a TWAIL perspective, India can offer fresh perspectives in the realm of

international law, with an aim to reform and reshape international law before the ICJ

and by joining the ICC , the safeguarding of the ideals of self-determination, sovereign

equality, justice and human rights could be further strenghtened.

Conclusion

As a member state of various international instruments, India’s status as a major world

power has gained strength in the last couple of decades, possessing rich democratic

political traditions, military strength, nuclear weapons capabilities, and potential for

growth in the coming decades. However, its practice of instrumentalisation and

withdrawal, highlighted in this article through the reservations imposed by India to the

compulsory jurisdiction of the ICJ and the resistance to becoming a party to the Rome

Statute, must be relooked at by acknowledging and accepting the international dispute

settlement mechanisms. At the same time, the government needs to make its workings

in international law at the domestic level more transparent.

Further, India as a member state must remember that most such pronouncements

involving India have been in its favour, such as the Bengal Maritime Arbitration or the

Jadhav case between India and Pakistan. Being a developing country, as India moves

into the elite club of the developed countries, it needs to keep in mind that its domestic

requirements are more aligned with the developing countries, and in such a situation,

the way it has approached its International dispute settlement by adopting a dual

approach of representing the interests of developing countries that was the contention

in the Chagos case along with its self-interest and ambition seen through the case of

Marshal Islands case, there is a need to bring clarity in its approach. Considering the

colonial past of various nations and repeated undermining of the role of ICC and limited

interaction with the ICJ by India, the objective and role of international dispute

settlement mechanism in general has been undermined.

In the future, India needs to utilise the available international dispute resolution

mechanisms including the ICJ and ICC and extend the ambit to other mechanisms under

international law to reflect India’s commitment to maintaining international peace and

security. It is only by bridging this gap and by making the institutions less eurocentric

that we can strengthen the universal international law and dispute resolution

frameworks, where India must play its role in achieving the said aim.

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