As the decade of 2020 goes along, we see that the rules-based international order has sought tremendous changes and has even been affected by various events of international and regional nature. We all have confronted these questions as international law has shaped with time, and the way its relevance and even mutual decadence is observed globally. The realpolitik, however, does not treat constructivism and the morally honest tendencies of multilateralism, the way constructivists expect it to do. This can be affably related with the end of the Cold War between the United States and the erstwhile Soviet Union, when a unipolar political moment was created, in the 1990s, infamously stated as the “end of history” by famous author, Francis Fukuyama. Now, since the intriguing 2000s, we are clearly seeing that alternative strategic groupings are coming into the fray and gaining relevance, such as BRICS, the G7 (after 2014), the Quadrilateral groupings (India-US-Japan-Australia, India-UAE-Israel-US & US-Afghanistan-Pakistan-Uzbekistan), the Abraham Accords relationships between Israel and some Gulf states and others. All these groupings, partnerships and relationships echo India’s External Affairs Minister Dr S Jaishankar’s statements at the Munich Security Conference, quite clearly, that the Quadrilateral on the Indo-Pacific clearly is a solution based on the problems of the 21st century. The transformation of international law, therefore, must reflect the concerns of these important groupings.
Let us take an example. The UN Security Council has a clear mandate to discuss, adopt resolutions and form commitments, on matters related to peace and international security as per the Charter of the United Nations. So, during the initial 3 months of COVID-19 pandemic in 2020, under China’s Presidency, health security was not approved even as an agenda of discussion, due to this reason among others. However, a reversely ontological basis of not accepting health security as an agenda is that the UN Security Council, unlike the UN General Assembly, is not competent to discuss any policy issue of “international” nature. It is argued that from a perspective of third world approach to international law and relations, socio-economic development or even sustainability for that matter, are also issues of interest, which yet, the UN Security Council cannot discuss under its charter mandate. Yes, on political affairs, conflict resolution and even humanitarian affairs, in cooperation with UN bodies such as the UNHCR and others, the UN Security Council can adopt resolutions. Here, we see a clear limitation of mandate to even discuss an agenda. Whether a particular agenda is relevant or not, is a completely subjective question, and is subject to consideration by nature and principle.
Let us take another relevant example to understand how even diplomatic discourses and outreach on UN reforms in the realm of multilateralism has been limited. Legal developments at the UN International Law Commission take a long time, and this is the reason why multilateral treaty negotiations leading to signature and ratification, is a long-run measure. It also alludes to the realpolitik, because of the needs behind seeking measures for amelioration among countries as their interests would naturally collide. However, if the realpolitik around the globe, based on exact policy paralyses and voids, which remain existent in among various stakeholders, then even before proceeding for codification, any relevant estimate to principally begin with juristic analysis, would prove to be fatal. We can see the same trend in India’s push to use the principle of pre-emptive strikes at the UN Security Council in 2019. It would be intriguing to assess how India would defend its claims against Pakistan at the International Court of Justice on the Pulwama case. Even collective security treaties are not agreed upon swiftly among countries. The process takes time and requires relevant alignment of the countries – and of course, giving up some aspect of sovereignty to the institutional framework, which emanates out of the multilateral treaty on collective security. Yet, in the emerging times, the relevance of collective security treaties and other multilateral treaties is declining.
Now, the transformation of international law in the Cold War era has been largely alluded to the Euro-Atlantic political construct, despite the fact that non-aligned countries like India, Egypt, former Yugoslavia and others had also shaped their nuanced positions on public international law per se, via the UN Conference on Trade And Development and other bodies and forums. The emergence of post-colonial Indian international law perspectives has been an important feat, where scholars such as Dr VS Mani, Dr Prabhakar Singh, Dr Manoj Kumar Sinha and others have contributed immensely to the scholarship on the topic. Even several former Supreme Court judges and lawyers have contributed to the international law developments, which the Indian Society of International Law, based in New Delhi, has witnessed and graced for years. Recently, Dr Bimal N Patel, the Vice Chancellor of Rashtra Shakti University and the Member of the National Security Advisory Board of India, was elected as a member of the UN International Law Commission for a 5-year term (from January 1, 2023). Even though India has engaged less in the International Law Commission in the 20th century, its approach towards peace and international security has been exemplary. Very few countries globally – despite being non-aligned or multi-aligned (means having issue-based relations, partnerships and coalitions with multiple countries) have balanced the global and regional debates across these times, and have shaped their approach towards global governance, tacitly.
Why does the Indo-Pacific matter?
As the Indo-Pacific becomes a relevant geopolitical construct, it is gaining relevance in Asia, as a considered replacement to the commercial-maritime Asia-Pacific construct, with some features remaining to be the same. Like the Euro-Atlantic construct, which begins its focus on the Atlantic Ocean and Pacific Ocean regions, the Indo-Pacific – clearly focuses on the Indian Ocean Region and the Pacific Ocean Region, in the Far East. Since India is a maritime power, the construct makes clear sense to make India a relevant actor in the region. Recently, the members of the Quadrilateral (hereinafter “Indo-Pacific Quad”) i.e., India, the US, Australia and Japan had met in Melbourne, Australia in February 2022 before a Leaders Meeting, which was held in early March 2022 at the request of the United States. They had agreed already on various principles on preserving the rules-based international order. As we know, India, even in the UN Security Council (since 2021) had proposed for reformed multilateralism, and its performance in the 3 UNSC Committees as a Chair, has been convincing. Countries in the Indo-Pacific Quad duly agree on notions such as (1) a Free and Open Indo-Pacific; (2) ASEAN-centrality and others. By the nature of this grouping, it becomes clear how multilateral efforts can emerge in the 21st century, which would be slow, captive and issue based. This can also be related with a drip-to-drip approach of shaping international life, (as we call it in the scholarship of public international law), in Asia, in areas such as climate security, technology, health, infrastructure, investment, knowledge economy, IP and others. Since it is a clear assumption that the Indian Ocean and Pacific Ocean regions are to be governed under a rules-based international order, the Indo-Pacific construct has its own value.
Nevertheless, there are political, economic and even technical concerns, which shape the way the construct has developed so far. This has paramount importance because if we look at India’s international law approach, it has been fairly inspired by the post-colonial international legal scholarship, especially of those inspired by the Non-Aligned Movement in the 1960s. Even though the reforms in the 1990s led to a larger democratisation of the free market in India, we are consistently seeing India developing a much-securitized approach towards public international law, which again – under its reformed multilateralism agenda, seems plausible, considering how various countries in the North Atlantic and Eurasia have violated international legal instruments for decades. There are legitimate concerns on the issues of international trade as well, where India in the World Trade Organization has largely supported the Global South countries, including the candidature of the recent Director-General appointed. Even in digital governance, the lack of neutrality that big technology companies, within and beyond the domains of social media & microblogging – are clearly depicting, requires clear assertion of technological sovereignty. Even the European Commission has been concerned at the issues of jurisdiction, antitrust violations and digital cum fundamental rights. Indian courts, especially the High Court of Delhi, for example, has taken interest and delivered judgments/orders on matters related to the interventionist tendencies of social media and other technology companies, quite reasonably, which itself is central to The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. This certainly is a promising development for India’s legal and judicial infrastructure since for an emerging economy and power like India, the robustness and approach of its systems is a much needed transformation.
However, legitimate questions can be asked as to how India looks at the Indo-Pacific. For the Global South, it is important to understand that many countries including India would adopt some aspects of the trends of pursuing non-alignment in cooperation and diplomacy. It will reflect in the pursuance of international legal tools and methods, via multilateral forums as well as bilateral efforts. The recent presidency of the United Arab Emirates in the UN Security Council amidst the Russia-Ukraine crisis clearly reflects this. After a tumultuous end-week of March 2022, Russia had attempted to block as many efforts as possible in the UNSC to merely adopt resolutions against itself (except that did not happen in the UN General Assembly). Even when the Afghanistan crisis had emerged in August 2021, India had chaired the UN Security Council. The realpolitik itself is a turbulent reality of the world, which shapes the way international law is assumed to be shaped. It is a clinical or idealist assumption that international law is meant to pre-empt any measures of prevention. It however runs down to the questions of legitimacy as far as assuming such standards under the larger legal scheme are concerned. We must also understand that the post-colonial impact of violating international law by countries in the Global North and giving less space to the earlier and currently non-aligned countries in the realpolitik, for sure has affected a mature development of international law as a corpus to drive justifiable standards. In some policy areas, while international law has its own value, in some areas, the realm of international law is not growing properly, and yet is limited to mere academic discussions, many of which still do not reflect any legitimate positive and negative concerns of the Global South countries.
This happens virtually due to a lack of scholarship in the area itself, but beyond that – even if it is true that some middle powers, who are partners and yet non-aligned/multi-aligned to the Western bloc as well as the Eastern countries (Russia/China/Turkey for example) have usually lacked the appetite to further shape their agendas, it would legitimately take time for countries to shape their legal agendas in any policy areas, be it ICTs, civil aviation, international trade, human rights, climate and environment and other issues. In that case, the Indo-Pacific is a new geopolitical playground where India is undoubtedly and clearly a major power. France, the resident power in the Indo-Pacific, whose approach towards international law and even conflict resolution has been more nuanced as compared to Russia (even the erstwhile USSR), China, the US and the UK as a UNSC permanent member, is a clear signal to the European Union that if it becomes non-aligned, as like the United States or maybe not, it will have to review their ties with China and act accordingly. India, in economic and demographic terms, is a clear and legitimate alternative to China, and even as an international law actor, has much diplomatic capital.
Shaping the trajectory of international legal reform goals for India
In this technical report co-authored by the author of the article, it has been argued that India’s positions of global governance can shape properly, when it shapes its role as a neutral, multi-aligned power in the Indo-Pacific, for global stability, since it can further improve India’s international law reform goals, and at the same time, can ensure that while two or more countries are inclined to poise bipolarity in the rules-based order as we know and see, India can foster cooperation with multiple countries across the globe. India’s position on Ukraine has been accepted by the rest of the member-states of the Indo-Pacific Quad, as informed by the Australian Ambassador to India recently. Even the US State Department acknowledges that for India, they are a “partner of choice” for India. Although India’s presence and involvement in various forums has always been unconventional, its diplomatic and political experience in multiple risk-averse policy areas of international law, such as trade, humanitarian affairs, technology & internet governance, environment and others, can reasonably shape a larger consensus to drive drip-to-drip reform goals. Pinaki Mishra, a Member of Parliament had asked the Ministry of External Affairs about the state of including and giving more opportunity to international law scholars and specialists per se. There is no doubt that India must improve the state of its institutions and cultivate a sustainable generation of scholars and specialists who can shape the Union Government’s agendas, as well the policy agendas of international legal importance, at a domestic level. We must also understand that the political moat of a nation-state matters, because, that largely in nuance shapes the way international law is interpreted and sought. India’s cooperation with the European Union and countries in continental Europe, for example, also reflects this reality. India is already waiting to enact a Data Protection Bill in the two houses of the parliament, and how its domestic realities mobilize the developments, are yet to be largely unfolded, still. Hence, in areas such as migration & mobility, digital connectivity and environment, Europe will play an intriguing role in future with India. It is therefore high time that policy realities are determined quite clearly, because without understanding the hardcore realities of the Global South, the Indo-Pacific construct which has been sheltered by India in cooperation with the West and other relevant actors, would turn out to be either limitedly infructuous or dysfunctional. India has a long way to go to shape the future of international law and global governance, and its role as a democracy should always be regarded with sincere and honest nuance, for the global good.
For more insight, readers can take a look at a technical report recently published by Global Law Assembly entitled “India-led Global Governance in the Indo-Pacific: Basis & Approaches”.
(This post has been authored by Abhivardhan, who is the President and Managing Trustee of the Global Law Assembly.)