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The State Practice of India and the Development of International Law: Dynamic Interplay Between Foreign Policy and Jurisprudence

Bimal N. Patel

ISBN13: 9789004317000

Published: July 2016

Publisher: Brill Nijhoff

Country of Publication: UK

Format: Hardback

Price: £183.00

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The State Practice of India and the Development of International Law by Bimal N. Patel provides a critical analysis of India’s state practice and development of international law.

The author demonstrates India’s ambitions as a rising global power and emerging role in shaping international affairs, and convincingly argues how India will continue to resist and prevent consolidation of Euro-American centric influence of international law in areas of her political, economic and culture influence.

Subjects:: Other Jurisdictions , India

Contents:: Foreword; Acknowledgments; Abbreviations; List of National Legislations; Table of Cases; CHAPTER I INTRODUCTION; Introduction; State Practice and Customary International Law; India’s Search for Making of International Law; India’s Attitude to Fundamental Definition of International Law; Constitution of India, International Law and State Practice; Mapping the Influence of Scholarly and Institutional Debates; Selection of topics; CHAPTER II HISTORY OF INTERNATIONAL LAW IN PRE-1945 INDIA; Introduction; Important developments and their influence on evolution and practice of international law;; Geographical scope of inquiry; Basis of international law; Disappearance of British common law from international law practice of independent India; Sources of international law in pre-1945 India; Sources of international law in ancient India and their influence on post-Independence India; Concepts of international law; International law-making through treaties; Administration of justice and international law; Private international law; State Responsibility; Concluding remarks; CHAPTER III LAW OF THE SEA; Introduction; India and the basic issues on the Law of the Sea; Indian position and interests and the Law of the Sea Convention of 1982; India’s position on issues of non-significance interest; Analysis of domestic maritime laws of India; Implementation of the UN Law of the Sea Convention provisions and possible conflicts; Enforcement Challenges; Climate change and maritime boundary issues; Role of the Indian judiciary and the UN Convention on the Law of the Sea; Maritime Zone Act, 1981; India at UNCLOS Forums; Ratification issue; Challenges; Concluding remarks; CHAPTER IV REFUGEE LAW; Introduction; Facts and Figures; International legal regime on Refugees; Legislative and regulatory framework of India; Policy and practices by the executive organs; Refugee issue and foreign policy of India; Role of the Judiciary on International Refugee Law; Concluding remarks; CHAPTER V HUMAN RIGHTS; Introduction; Rights of the Marginalised People; Economic, Social and Cultural Rights (ESCR); Right to Food; Social security; Public health; Education; Right to Habitat; Right to transparent and accountable governance; Rights of Indigenous People; Issues concerning women; Economic Rights – a way forward for women empowerment in India; Rights of Children; Concluding remarks; CHAPTER VI INTERNATIONAL ENVIRONMENTAL LAW; Introduction; Evolution of environmental law in India; Right to Healthy Environment; India’s contribution to important international environmental law principles: Strict and absolute liability; Role of the Indian Judiciary; Bhopal Gas Disaster and its Importance for the international environmental law Jurisprudence; Absolute Liability Principle; Sustainable development; Precautionary and Polluter Pays Principle; Precautionary Principle; Precautionary Principle Replaced the Assimilative Capacity Principle; Polluter Pays Principle; Concluding remarks; CHAPTER VII INTERNATIONAL CLIMATE CHANGE LAWS; Introduction; Issues and Challenges; Implementation of climate regime at domestic level; Climate Change Negotiations and India; Concluding remarks; CHAPTER VIII Laws of Disarmament of the Weapons of Mass Destruction: A Case Study of Chemical Weapons Convention; Introduction; Overview of the Chemical Weapons Convention; Regime on the destruction of chemical weapons and destruction and/or conversion of chemical weapons production facilities; Initial declaration on CW programmes; Annual Plans, Reports and Detailed Facility Information; Declarations with regards to CWPF programme; CW Defense Programme of India; Challenges to prevent proliferation of chemical weapons; Government control and problem of enforcement with the non-proliferation; Lacunae in Indian CWC Act; International Cooperation and Assistance and the Promotion of peaceful uses of chemistry; Administrative, legal, and organizational matters; Implementation of international obligations at national level; Universality of the CWC and role of India; India, Chemical Weapons and International Law; India, CWC, and Peace Dividend; Concluding remarks; CHAPTER IX INDIA AND THE UNITED NATIONS REFORMS (2005-2012); Introduction; Linkage between UN Reforms and International Law; UN Reforms: Definition and Meaning; India’s role and responsibility: Understanding the aspirations of a rising global power; India’s proposals in the current reform exercise; India & Reform of the Security Council; Economic Development; Rationale of the Indian position on reforms on economic issues; Peacekeeping Operations; Peace Building Commission (PBC); Humanitarian intervention and relief; Terrorism; Administrative and inter-institutional reforms; UN Outreach; Use of strategies and public relations campaign: A critical appraisal; Limitations of India; Achievements; Indian State Practice and Functioning of Group of 20; Concluding remarks; CHAPTER X INTERNATIONAL COURT OF JUSTICE AND INDIA; Introduction; Indian Position on the Role and Functioning of the Court; India as a Party in the Contentious Cases; Indian Position on the Legal Rules and Principles in the Contentious Cases; Preference for Diplomatic Negotiations; ICJ Advisory Proceedings; Concluding remarks; Indian Declaration of Acceptance of the Compulsory jurisdiction of ICJ: An evolution; CHAPTER XI CONCLUSIONS; General; Distinct Approach of Judiciary and Executive to International Law; Post-Independence Practice of India: A Rising Power Approach to International Law; Use and Effectiveness of the Proactive versus Reactive Approaches to Ensure Desired Outcomes; India will continue to avoid the ICJ as a means of Dispute Settlement; Patience and Persistence: Virtues of Statecraft in the UN Reforms; Permanent Membership of the Security Council: Success Chances are Stronger than Ever Before; Law of the Sea: Reflection of a Growing Hegemonic Power; India: Shaping and implementing international law of human rights in its own way and pace; International Environmental Law: Tension will continue between the Executive and Judiciary; Disarmament: India will continue to Insist for Non-Discriminatory Truly Disarmament Instrument while remaining Ambivalent in Its Practices; International Law offers India Benign Tools to Promote National Interest; India: Alternating between Idealist and Realist Postures; International Law to Help Achieve India – Developed Nation Status by 2020; Status of Multilateral Treaties and India; Bibliography; Subject Index