Daily Mains Newsletter for UPSC 12 Jan 2022

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Daily Mains Newsletter for UPSC 12 Jan 2022

Daily Mains Newsletter For
UPSC | RaghukulCS

12 Jan 2022 - Wednesday

Index

Table of Contents

India's approach to Customary International Law

News Context:

  • The Supreme Court has been inconsistent in its approach to CIL under Indian law.

What is Customary International Law (ICL)?

  • Customary international law is made up of norms developed from “generally recognised practise” that exist independently of treaty law.
  • International humanitarian law (IHL) is a body of customary law that fills in gaps left by treaty law and improves the protection provided to victims.
  • It is documented in official military reports, national laws, and case law.
  • States see both treaties and customary international law as sources of international law.
  • Acceptance of CIL as the law is referred to as “opinio juris.”

What is the legal status of CIL in India?

  • India adheres to the “dualism” idea.
  • International law does not always find its way into the domestic legal system.
  • According to Article 253, a parliamentary act is required to convert international law into municipal law.
  • In practice, India has shifted away from dualism toward monism by including not just CIL but also international treaties, even ones India has not ratified.

What is the Supreme Court’s position on CIL?

  • The parliamentary committee on foreign affairs’ report on “India and international law” explores how Indian courts have dealt with international law.
  • The group thinks that the Supreme Court has abandoned dualism in favour of monism.
  • It maintains that, unless it conflicts with domestic law, customary international law (CIL) is a component of the Indian legal system even in the absence of enabling legislation established by Parliament.

Is the Supreme Court’s stance consistent?

  • The Supreme Court has been inconsistent in its treatment of CIL under Indian law.

Court decisions in favour of adopting CIL into Indian law –

  • Vellore Citizens Welfare Forum v. Union of India – The Supreme Court declared that CILs that do not violate municipal law are assumed to be integrated into domestic Indian law.
  • Subsequent rulings have reaffirmed this concept.
  • Research Foundation for Science v. Union of India – Citing the Vellore Citizen case, the Supreme Court held that the precautionary principle (a notion found in CIL) is incorporated into Indian law.

Decisions opposing the incorporation of CIL into Indian domestic law –

  • Mohamad Salimullah v. Union of India – In this case from 2021, the court declined to decide against deporting Rohingya refugees to Myanmar.
  • This is despite the fact thatCIL includes the concept of non-refoulment.
  • The concept of non-refoulment forbids a government from returning refugees to countries where they face an obvious risk of persecution. However, the court made no attempt to adopt this notion into Indian law.

How is it perceived?

Arguments in favour include the following: –

  • CIL being an integral element of the local legal system is consistent with other common law nations’ experience.
  • The upside of judicial incorporation is that it results in the progressive growth of law when the administration and legislature fail to implement legislation converting a liberal international legal standard into domestic law due to ideological or political considerations.
  • India’s stunning inability to adopt refugee legislation that incorporates the non-refoulment principle is a textbook illustration of this.
  • The Supreme Court blew a golden chance in the Mohamad Salimullah case.

Arguments against –

  • To determine whether a certain provision establishes a legally enforceable customary norm under international law, the dual condition of state practise (states’ actual behaviour) and opinio juris must be met (belief that the custom is part of the law). The supreme court performs such analyses seldom.
  • According to the parliamentary committee, the judiciary’s incorporation of international law without legislative oversight creates a democratic weakness.
  • This has the potential to become a point of conflict between the judiciary and the other governmental institutions.

What actions are required?

  • The executive should be aware of the gap in domestic legislation on customary international law and adopting sufficient domestic legislation is a critical one.
  • This should not be seen as an expansion of local law that opposes international law’s binding customary rules.
  • India, on the other hand, should establish domestic legislation that is consistent with CIL.
  • On its part, the court should exercise more analytical rigour in interpreting and implementing CIL as a component of the Indian legal system.

Achieving Indian continental and maritime interests in Eurasia

  • The year 2021 will be remembered as an annus horribilis due to the Iran nuclear crisis, increasing oil and gas prices, simmering crises in Yemen, Iraq, Syria, and Lebanon, and the Taliban’s restoration to power in Afghanistan after the departure of the US soldiers. All of these trends are very concerning for India’s interests in continental security.
  • India’s continental strategy, which is inextricably linked to the Central Asian area, has advanced in fits and starts over the last two decades – encouraging connectivity, incipient defence and security cooperation, expanding India’s soft power, and growing commerce and investment.
  • It is commendable, but as has become clear, it is inadequate to handle the region’s bigger geopolitical concerns. Striking the appropriate balance between continental and marine security will be the finest long-term security guarantee for India.

Eurasia’s Geopolitical Developments

  • China’s assertive rise, the US/NATO withdrawal from Afghanistan, the rise of Islamic fundamentalist forces, and the changing dynamics of Russia’s historic stabilising role (most recently in Kazakhstan) have all contributed to a sharpening of geopolitical competition on the Eurasian landmass.
  • The geopolitical struggle is characterised by a weaponization of resource and geographical access as a method of dominance, conducted by China and other large nations.
  • While each of the current crises in Belarus, Ukraine, the Caucasus, and Kazakhstan has its own logic and trajectory, they are collectively changing Eurasia’s geopolitics.
  • Russia, with its geographical dispersion across Eurasia, is at the epicentre of that reconfiguration.
  • Moscow’s military action in Kazakhstan and its recent security conversations with the US highlight Russia’s relevance in Eurasia.
  • China’s desire and capability for military intervention and power projection have expanded well beyond its local neighbourhood.
  • The Belt and Road Initiative is a series of projects in Central Asia that will eventually reach Central and Eastern Europe and the Caucasus, undermining Russia’s historic power.
  • Expanding influence among the continent’s political and economic leaders.
  • While the US maintains a sizable military presence on the continent’s periphery, its military footprint on the core Eurasian landmass has reduced substantially.
  • While the United States had more than 265,000 soldiers under its European command in 1992, it today has around 65,000.
  • Despite the expansion of China’s military strength, the US, which had around 100,000 soldiers in the early 1990s under what is now known as the Indo-Pacific Command, today has roughly 90,000 troops, the majority of whom are dedicated to Japan and South Korea’s territorial defence.
  • The US, on the other hand, is a preeminent naval power, especially more so in the Indo-Pacific area, and bases its strategic preferences on its own assets.

Associated Difficulties

  • The United States, which may be a key partner for India in establishing a strong footing in Eurasia, is a dominant actor in the Indo-Pacific area but has left a relatively small footprint on the continent.
  • However, maritime security and related aspects of naval force are insufficient weapons of statecraft as India strives to bolster deterrence against Chinese unilateral acts and the formation of a unipolar Asia.
  • The constant dual threat posed by Pakistan and China laid the groundwork for a difficult continental dimension to India’s security. The militarization of the frontiers with Pakistan and China has escalated.
  • For more than five decades, India has been subjected to a land embargo by Pakistan that has few precedents in relations between officially neutral governments.
  • Connectivity is worthless if access is restricted due to prolonged neighbouring state antagonism, which violates international law’s rules.

The Path Forward

  • Barriers to Chinese maritime expansionism are comparatively simpler to construct and to remove than the long-term strategic benefits China seeks to obtain on continental Eurasia.
  • Just as centrality is critical for the Association of Southeast Asian Nations (ASEAN) in the Indo-Pacific, centrality for Central Asian nations should be critical for Eurasia.
  • With the recent events in Afghanistan, India’s physical connection difficulties with Eurasia have grown even more acute.
  • India’s connectivity marginalisation on the Eurasian continent must be rectified.
  • People in Central Asia, Iran, and Russia need to be more aggressive in their push for continental rights (transit and access). They also need to work more actively with economic and security groups like the Shanghai Cooperation Organization (SCO), the Eurasian Economic Union (EEU), and the Collective Security Treaty Organization (CSTO) (CSTO).

Conclusion

India would need to develop its own continental and marine security standards that are compatible with its own objectives. By retaining strategic autonomy, India’s diplomacy and statecraft will be able to traverse the challenging terrain and stormy seas ahead.

Ethics | Paper – IV

Diligence:

  • It refers to a sustained effort, whether physical or mental, to achieve a goal.
  • To be diligent, one must be persistent in their efforts and pay close attention to the smallest of details.
  • One of the seven heavenly qualities is diligence, which is defined as “carefulness and continuous effort or work.” It is a sign of a strong work ethic, the notion that work is a positive experience in and of itself.
  • An artist who carefully paints every strand of hair on a portrait is an excellent illustration is an example of diligence.

Code of ethics

  • A Code of ethics is an organization’s collection of beliefs and morals that guide its judgments about what is good and wrong and how to behave in a wide range of circumstances.
  • For example,A company is encouraging its workers to embrace green practises in their daily dealings in order to preserve the environment.

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