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

Law

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

By Bimal N. Patel
Brill Nijhoff July 2016

Specifications

ISBN-13
9789004317000
Publisher
Brill Nijhoff
Publication
July 2016
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Details

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.

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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.

Table of 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
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