History of Indian jurists in the development of International law
Indian jurists have had an enormous impact in the development of International law. India has produced several lawyers who have contributed immensely to various fields in International law like technology and trade laws, human rights, maritime law, environmental protection and so on. Indian legal thinking has been heavily influenced by the colonial period of India when the British started employing new common law practices into the pre-existing uncodified legal pedagogy of India.
One of the pioneers of Indian legal contribution to the field of International law was Sir B.N. Rau who was known for his contribution in the formulation of the Indian Constitution. He is also credited as the First Permanent Judge of the International Court of Justice. International law was initially applicable only to European Christian States or countries with significant Caucasian population like the Americas since it evolved from European law legislations, but after the European colonization of several Asian countries like India, International Law started gaining prominence in the colonized states.
After Indian Independence when the Constitution was drafted, adequate emphasis was placed on International law given its history of International law ties derived from British law. Article 51 of the Indian Constitution propagates the State to maintain and promote international peace and security, and to sustain good transnational relations with other countries, was adopted from the Declaration of Havana, 1939.
In the initial stages of Indian independence, India was duly involved in having to deal with International law since the Kashmir dispute was frequently brought up at the UNSC (United Nations Security Council) and several negotiations and treaties were entered into by India such as the Universal Declaration of Human Rights and the Refugee Convention, 1951. India was also sued by Portugal over a Right to Passage, claiming that they were entitled to ensue communications with its (then)affiliate territories of Daman and Dadra and Nagar Haveli.
Sir B.N Rau also played a key role in the Anglo-Iranian oil dispute in 1952 whereby he recused himself from the decision making process which led to much controversy on a global level and the Indian government clarifying that it did not influence B.N Rau’s decision for recusal since he was acting voluntarily. Nehru’s admiration for international law and the fact that he was a diplomat was one of the primary reasons India was elected to chair the UN Committee for the Progressive Development and Codification of International Law in 1946 and his relationship with Philip C. Jessup, the global Ambassador of the United States, who was a legal scholar and diplomat opened many doors in India’s involvement with international law.
India’s criticism of Holland on the military aggression in Indonesia was a huge turning point since it resulted in a conference in India consisting of Asian leaders to discuss the crisis. Philp Jessup, then a US representative to the UN, supported India on their criticism of Holland citing a disregard of Charter Principles by Holland towards Indonesia in a speech at the UN General Assembly. He was an advocate for self-determination and de-colonization of countries and believed in a democratic setup for the governance of a country.
LEGAL ISSUES INVOLVED
The Indian attorney who played a key role in the dispute resolution of the Pedra Branca dispute (1979) was Pemmaraju Sreenivasa Rao, another noted legal figure who was appointed as an ad hoc judge in the territorial dispute between Malaysia and Singapore which dealt with the territorial sovereignty of Pedra Branca, Middle Rocks and South Ledge, all disputed territories within the Singapore-Malaysia border. This case is credited as one of the landmark cases regarding maritime territorial disputes. It has served as a precedent for many further cases like the Palk Bay territorial dispute between India and Sri Lanka.
The Tokyo War Crimes Tribunal, a military trial to indict the political leaders of Imperial Japan was convened in 1946 for conspiracy to start a war and other crimes against humanity. Radha Binod Paul was an Indian judge on the Tribunal who dissented with the judgement and held that the leaders were not to be blamed for the offences they were charged with citing it as victor’s justice, thereby dismissing the legitimacy of the War Crimes Tribunal. This criminal case had left an everlasting impact in world history as one of the most polarizing cases involving International law as it was also one of the core agendas of the San Francisco Peace Treaty, 1951 sanctioned by Japan and the Allied Powers as a redressal mechanism for World War II.
Another noted Indian legal scholar and judge who was considered a pioneer of human rights and judicial activism known on a global scale was Justice P.N Bhagwati. He was appointed as the Chairman of the UNHRC (United Nations Human Rights Committee) in 1999 and also briefly worked with the ILO (International Labor Organization). His services have been employed by several countries like Mongolia, Ethiopia, South Africa and so on in framing their Human Rights Directives for their respective Constitutions. Additionally, he was also the jurist who had introduced the concepts of absolute liability and public interest litigation in India.
P. C Rao was a legal scholar who had authored several books on International Maritime Law such as the New Law of Maritime Zones, which has been cited in several transnational maritime cases like the Enrica Lexie case which involved two Italian Marines charged with the murder of two Indian fishermen off the coast of Kerala. India claimed territorial jurisdiction by asserting a customary international law which provided the State with exclusive powers to assert the maritime boundaries according to the Maritime Zones Act. The judge noted that the State also had the power to ‘alter/ determine’ the territorial boundaries to ascertain sovereignty. P. C Rao’s work had heavily influenced the judgement as the judge relied on several statutes from the book to give the judgement.
Author: Sourav Reddy Dodda
4th year, BBA LLB (Hons.)
O P Jindal Global University