Mr. S.

Jaishankar
Ministry of External Affairs.
Jawaharlal Nehru Bhawan,
23-D, Janpath, New Delhi - 110 011.

Respected sir,

We, a group of students, practitioners and scholars of international law thank you and your
office for the initiatives it has taken to make India’s participation in the international
community accessible and visible. In particular, the Indian Treaties Database by the Legal
and Treaties division of the Ministry of External Affairs has given us much needed insight
into sovereign practice and decision-making processes.

Inspired by such efforts and, as stakeholders in the study and praxis of international law, we
write to you with some broad recommendations and illustrative templates of documenting
state practice that may greatly benefit the study of international law in India.

A. CONTEXT AND ACADEMIC SIGNIFICANCE

International law places special emphasis on the role of customary law1 as a source of
juridical authority. Broadly, customary international law is a result of general practice (state
practice) that is accepted as law (opinio juris). Customary International Law is considered as
the oldest source of international law and has contributed greatly towards the universalisation
of international law. However, third world scholars have demonstrated the ways in which
customary international law acts as a tool of subjugation. 2 Besides, what substantively
constitutes state practice has also been the subject of much academic debate, 3 including its
Eurocentric undergirding and the peripheral participation by Global South states.4

The absence of readily available state practice from the Global South has increased reliance
on norms and scholarship from the Global North which have little to no contextual and
geographical relevance for the region. For instance, the WTO property rights regime operates
on a presumption of individual ownership of labour and output as against indigenous
practices of communal resources and knowledge in several Global South states. Adhering to
such Western notions of property and ownership has subsumed other epistemologies that
1
Article 38 of the Statute of the International Court of Justice (signed 26 June 1945, entered into force 24
October 1945) 1 UNTS XVI.
2
Among others, BS Chimni, ‘Customary International Law: A Third World Perspective’ (2018) 112 American
Journal of International Law 1.
3
For instance, Anthony D’Amato, The Concept of Custom (Cornell University Press 1971) 88; and Ian
Brownlie, ‘Remarks: Comparative Approaches to the Theory of International Law’, 80 Proceedings of the
Annual Meeting (American Society of International Law) (1980) 154, 156; BS Chimni, ‘Customary
International Law: A Third World Perspective’ (2018) 112 American Journal of International Law 1.
4
Chimni, ‘Customary International Law: A Third World Perspective’, at 20-27.Vasuki Nesiah, ‘Decolonial
CIL: TWAIL, Feminism, and an Insurgent Jurisprudence’ (2018) 112 AJIL Unbound 313-318.
could address these structural inequalities outside of the global North. Resultantly, customary
international law has played a key role in perpetuating or exacerbating global inequality and
facilitating the colonial project.5

This practice of assimilation has had a significant impact on India’s domestic jurisprudence
and policy in which courts consistently rely on "universal" CIL norms, particularly in matters
where domestic law appears silent. For instance, in Vellore Citizens’ Welfare Forum v. Union
of India,, the Supreme Court considered “sustainable development” as customary law and
hence, a part of India’s legal landscape. Similarly, in People’s Union for Civil Liberties v.
Union of India, the Court noted that it is “an accepted proposition of law that the rules of
customary international law which are not contrary to the municipal law shall be deemed to
be incorporated in the domestic law.”

While the aforementioned practices are apparently neutral, they are rooted in a liberal,
capitalist imagination of international law where development is linear and consistent. When
such constructions and practices are adapted without context, they can pose deleterious
consequences for the unevenly positioned Global South states. Thus, it is pertinent for Global
South states to articulate and consolidate their own practices in a paradigm that allows for a
more inclusive designation of State Practice. As interlocutors from India, we find this a
particularly relevant project to intervene in as against the proliferation and universalisation of
practices from the Global North States. We derive this orientation from the rich historical
ethos of postcolonial states to continuously reclaim a sense of identity through praxis such as
the Non-Aligned Movement (NAM), conceptualisation of the New International Economic
Order (NIEO) and scholarly interventions under the banner of Third World Approaches to
International Law (TWAIL). It is in this vein that we offer the recommendations and
illustrative Annexures in the following segment.

B. GLOBAL STATE PRACTICE INITIATIVES AND PROJECTS

Globally, several initiatives have been undertaken by state and non-state actors to encourage
a more dialogic relationship with international law and to better understand state practice. In
Asia, China6and Thailand7 have designed comprehensive databases and policy documents in
English to foster deeper international engagement with state practice in the region. The NUS
Centre for International Law has released a database of Asian cases and reading materials
with the same objective. 8 In India, the Indian Journal of International Law has made an effort
to periodically compile the Indian state practice.9 The South Asian University was also set up
5
Chimni, ‘Customary International Law: A Third World Perspective’..
6
See, Website of the Ministry of Foreign Affairs of the People's Republic of China, available here
<https://www.fmprc.gov.cn/mfa_eng/>
7
See, Website of the Ministry of Foreign Affairs, Kingdom of Thailand, available here
<https://www.mfa.go.th/en>
8
TRILA Database of Asian Cases and Reading Materials', available here
<https://docs.google.com/document/d/1a678-qh741g96yvEUrd-lhh4U-JzJcFgmPqU25OKH1M/edit>
9
For instance, Abhimanyu George Jain, ‘Indian Practice Relating to International Law’ (2018) 58 Indian
Journal of International Law 489.
in New Delhi to support intellectual collaborations - including in the field of international law
- between academics from member States of the South Asian Association for Regional
Cooperation (‘SAARC’).

These initiatives speak to a growing intellectual temperament towards documenting regional

histories, practices and judicial interventions in light of Asia’s growing relevance within the
international community. Having closely engaged with these efforts, we have three broad
recommendations for the MEA archive and website with the intent of :

1. enhancing accessibility of existing documents.

2. making available information and deliberations that are instrumental to the treaty
making process.
3. generating documents that are compatible with extensive and rigorous archival of
state practice.

_______________

1. An Accessible Indian Treaties Database.

The Indian Treaties Database, while extensive, is fragmentary and difficult to access for the
purposes of study and analysis. We request that a comprehensive database be curated for
intellectual, pedagogical and empirical interventions we can make as a state as well as
representatives of the global south in varying capacities. The section on Treaties may be
better served if:

a) In addition to the texts, it includes information about the reservations and

amendments made to each treaty, wherever applicable. This offers a chronological
account of our evolving international positions and commitments.
b) We also suggest the release of an annual publication, similar to the United States’
“Treaties in Force” volumes,10 listing treaties and international agreements which
- had not expired by their own terms or
- which had not been denounced by the parties, replaced, superseded by other
agreements,
- or otherwise definitely terminated.

This yearly document published by the Treaty Affairs Staff of the Department of the State,
allows text searches and access to select sections as well as relevant, interconnected texts.

An illustrative document clarifying the life cycle of a treaty can be found here or in Appendix
A of this document.

10
Treaties in Force between January 1, 2020 and January 1, 2021, available here < https://www.state.gov/wp-
content/uploads/2020/08/TIF-2020-Full-website-view.pdf>
 2. Documenting India’s official interventions in international law discourse and
practice

The MEA website currently publishes information about India’s statements at Security
Council sessions and attendance in various events. We are aware that the statements by the
Indian representatives at UN organs are regularly published on https://pmindiaun.gov.in/ and
https://www.pminewyork.gov.in/. But despite the wide sphere of international participation
by India, there is no consolidated database of statements by the Indian representatives at
international and regional forums such as the Sixth Committee of the General Assembly, the
ECOSOC, the Human Rights Council, the G77, the India-Africa Forum Summit. Similarly,
India’s engagement with institutions like the International Law Commission, including
responses to the questionnaires and factual information, are not available on MEA’s
webpage. Previously, India’s foreign relations practice was annually documented in Avtar
Singh’s primer ‘India’s Foreign Relations’ (co-produced by the MEA). However, the latest
version of the primer was prepared and published in 2013, leaving a decade of
unconsolidated practice.

In order to address this gap, we recommend that the segment on “Statements by Ministry” be
modified to include:

a) Statements and representations by the Ministry in international bodies.

b) Policy Papers that influence decisions towards or against treaty ratification.

This preceding context is particularly important for the purposes of intellectual and analytical
engagement with international legal actions and texts. State practice, in particular, is a
bricolage of rhetoric, research and resolutions. And statements, policy papers and
participatory gestures will help us understand the various considerations that inform state
action towards international law.

To this end, we hope that the Ministry encourages the electronic submission of data,
wherever possible, to aid it in its mission of providing free and easily accessible online
information through this database.

3. An Archive of Indian Nominations at International Bodies

A number of Indian nationals have been elected as members of the International Law
Commission (ILC) since 1949.11 Many Indians have held (permanent and ad hoc) judgeships

11
Indian nations who have held the position of ILC member includes: BN Rau (1949-1951); Radhabind Pal
(1952-1966); Nagendra Singh (1967-1972); SP Jagota (1977-1986); PS Rao (1987-2006); Narinder Singh
(2007-2016); Aniruddha Rajput (2017-2022); BN Patel (2023-2028).
at international courts and tribunals. While knowledge of incumbent Indian
judges/representatives is in the public domain, not enough is known about Indian nationals
who held such positions in the past. The information is equally scant in the case of Indian
nationals who have been counsels before international tribunals especially given the mode of
selections for such appointments.

The signalling effect12 of seeing and knowing the place that India occupies in international
law discourse and law-making is immense, particularly for scholars and students. In light of
such potential impact, we recommend that the MEA website be updated to reflect these
aspects of India’s international law presence by:

a) consolidating information about and creating profiles of Indians who have held
representative positions and acted as counsels in various international tribunals and
bodies. Such publicity creates informed publics, who are considered crucial in
realizing the communicative character of international law.
b) widely disseminating information regarding vacancies
c) Sharing the grounds, procedures and priorities that the Ministry has in mind while
nominating individuals for various roles and lateral appointments outside of the Civil
Service Examinations.

As students and scholars of international law, many of us aspire to work with the Ministry of
External Affairs and represent India in matters of international law. The aforementioned
recommendations will inspire and motivate us to work hard and prepare ourselves for these
opportunities.

4. Collaborations and Consultations with Civil Society

It is now widely accepted that states are not the only law-making bodies and various studies
reflect the transnational, local and geopolitical significance of engagements with civil
society.13 In light of the significance of such collaborations to constructing state practice, we
recommend that the Ministry:

a) Create and share a list of non-governmental bodies and agents that assist in law
making and legal interventions in international legal spaces.
b) Share the MoUs, policy papers and actionable items generated from such
collaborations.
c) Encourage public consultations with civil society actors by formulating a policy
statement prescribing transparent procedures for the negotiation, drafting, tabling and
compliance monitoring of treaties rooted in public consultations. The policy statement
12
This signalling effect has been acknowledged by States like Japan – whose MEA regularly
publicizes profiles of nationals who hold judgeships and such at international tribunals.
13
Among others, Math Noortmann, August Reinisch and Cedric Ryngaert (eds), Non-State Actors in
International Law (Bloomsbury 2015).
 released by the Canadian Ministry of Foreign Affairs is a useful illustration of how
procedure can be constructed.
d) Engage with civil society to identify people beyond the establishment for nominations
to various international bodies. This will also help democratise the process.

Public consultations have become increasingly popular in international law-making in the

recent decades, with a growing awareness of the epistemic and legitimizing value that civil
society perspectives bring. In India, public consultations prior to treaty signatures are rare and
on the occasions when public consultations are held, they are ad-hoc.

Conclusion

This petition is an attempt to move towards a more dialogic practice of international law in
India. As international law practitioners, scholars and students we have all been keenly
studying and spotlighting India’s contributions to international law. It would be a pity if these
contributions are not archived and engaged with to their full potential. This petition hopes to
offer constructive suggestions on how such a gap can be avoided. We hope that this petition
will be seen and received in the same constructive spirit of scholarly consultation. We are
happy to unpack the above suggestions in more detail and offer clarifications/ideas as to
operationalization, if any.

Thanking you, we remain,

Most sincerely yours,

_____________

To be a signatory to the Petition please add your name and institution here.
 Appendix A:
Illustrative treaty database

The L&T Division of the MEA can consider organizing India’s State practice according to
themes such as human rights, citizenship, climate change, terrorism, and territorial
sovereignty. This practice can range from domestic judicial decisions commenting on the
selected themes (ideally situating these comments within the international legal framework),
international/regional litigation involving India that may have been predicated on these
themes, India’s statements about international/internationalized disputes surrounding selected
themes, India’s submissions to treaty bodies, India’s replies to withdrawals/non-compliance
by other States parties, etc.

For treaties, in particular, below is a useful catalogue of practice that is worth documenting.
This practice maps the full life of the treaty.

§ Negotiation
Statements made by Indian representatives during the negotiation of the treaty
Japan, for instance, maintains an online diplomatic archive that collects
and preserves a wide range of historical diplomatic documents
including records/explanations of the Ministry of Foreign Affairs,
sovereign letters, pre-war treaties and such. These records are all
available to the public.

Nature of treaty (bilateral/multilateral; between states/between states & IOs;

subject-matter; other categories)
India already uses these categories for classification, Canada does this
too. Australia, in addition, cross-references treaty status sites. The US’s
digest of international law also consolidates comments by American
delegates at the International Law Commission on treaty related issues
(for instance, ILC Draft Guide to Provisional Application of Treaties).
Closer home, Asian States including Indonesia and Philippines
maintain treaty databases containing information about the nature of
the treaty.

§ Conclusion
Date of adoption of treaty
Date of signature/ratification/accession
This is common practice in many States, including South Africa and
the Netherlands. The Indian treaty database contains these details too.

Consultation with civil society before signing/ratifying the treaty, and the
responses received (if any)

§ Reservations
 Reservations to treaty provision(s) made by India (if any)
Objections by India in relation to reservations made by other countries (if any)
Withdrawal of reservations and of objections to reservations by India (if any)
The treaty database maintained by the Ministry of Foreign Affairs of
New Zealand contains details of the reservations, declarations, and
objections filed by the State.

§ Entry into force and compliance

Discussion in the Parliament (if any)

Implementing Legislation/rules/regulation adopted in compliance with treaty
provisions (if any)
Bills pending before the Parliament in relation to the treaty (if any)
Domestic litigation regarding the entry into force, interpretation or application
of treaty (if any)
Treaty compliance reports submitted by India before Charter/treaty bodies
Formal objection raised by other contracting parties regarding non-
complia[nce with treaty obligations by India (if any)
Formal objection raised by Charter/treaty bodies regarding non-compliance
with treaty obligations by India (if any)
India’s response to the alleged non-compliance of treaty provisions
Formal objection raised by India regarding non-compliance with treaty
obligations by other contracting parties (if any)
Participation before International judicial bodies in relation to dispute
regarding compliance with the treaty (if any)
Copy of written statements
Transcript of oral statements
Compliance with the decision of the international judicial body

Objection by India regarding non-compliance by other disputing

party(ies)

The US Congress’s treaty catalogue is particularly instructive in

this respect. It documents all the executive committee reports
and senate actions in the run up to the domestic incorporation of
treaties. The Swedish Ministry also releases ordinance
explanatory notes and written notes following treaty signatures.
Separately, the Japanese Ministry of Foreign Affairs collates
memorials and oral pleadings from the international disputes in
which the State of Japan was involved.

§ Amendment

India’s position regarding amendment to the treaty (if any)

§ Invalidity/ Suspension/Termination/ Withdrawal from treaties

India’s position on the issue of invalidity of a treaty

Suspension of treaty by India, along with date and reasons (if any)
Revocation of suspension of treaty by India (if any)
Termination of bilateral treaties by India, along with date and reasons (if any)
Withdrawal from multilateral treaties by India, along with date and reasons (if
any)
India’s response to termination/withdrawal from treaties by other contracting
parties
Parliamentary discussion regarding suspension/termination/withdrawal from
treaties
Changes made in the domestic legal system subsequent to
suspension/termination/withdrawal
The United Kingdom maintains a database with exhaustive information
about the invalidity/suspension/withdrawal status of treaties.

§ Depository
List of treaties to which India has been designated as a depository.
This is practice in the Netherlands and Switzerland.