Author: Aditya Naduvinamani, KLE Law College, Bengaluru
Abstract
This article critically examines the arguments on how India’s Foreign Policy became a disaster. It asserts that under the leadership of Prime Minister Narendra Modi and External Affairs Minister S. Jaishankar, India’s foreign policy has suffered declining diplomatic leverage, strategic errors, and inconsistency. Anchored in legal theory, case law, and candidate legal jargon, this article dissects the arguments, contextualizes assertions with jurisprudence, and assesses whether India’s actions align with international law doctrines.
To the point
This article contends that India’s foreign policy has transitioned from ideational leadership to diplomatic improvisation. It highlights strategic missteps, ranging from strained relationships with traditional allies to unreciprocated outreach to adversaries. This article sets out to explore key contentions using a legal lens, exploring doctrines such as pacta sunt servanda, opinio juris, and case law from the International Court of Justice (ICJ), alongside domestic Indian legal frameworks governing foreign relations.
1. Contextual Framework
1.1 Sovereignty and Pacta Sunt Servanda
The principle of pacta sunt servanda: binding nature of treaties is integral to modern international law, codified in Article 26 of the Vienna Convention on the Law of Treaties (1969). The broader concerns about India’s wavering commitments to strategic partnerships implicate this doctrine.
1.2 Customary International Law: Opinio Juris
Customary law requires both state practice and opinio juris, the belief that a practice is legally obligatory. There is a question whether contemporary Indian foreign policy reflects such belief, pointing to discrepancies between made promises and diplomatic follow-through.
2. Strategic Partnerships: WTO Dispute Settlement Case
2.1 India’s WTO Stance
India has been embroiled in WTO dispute resolution against developed nations. The case of India–Retaliatory Measures (European Union) (request for consultation by India) showcases India invoking WTO’s Dispute Settlement Understanding (DSU). By adhering to WTO procedures, India reaffirms the pacta sunt servanda obligation under international trade law.
2.2 Legal Significance
India’s compliance with WTO dispute mechanisms demonstrates a functional commitment to legal processes. However, it is argued that in geopolitical arenas, such procedural adherence fails to reinforce credibility, suggesting a normative versus instrumental approach to legal obligations.
3. Strategic Ambiguity and Third-Party Effects
3.1 Iran, Pakistan, and Non-Aligned Policy
Critics say that India’s vague stance regarding Iran’s support for Pakistan in past conflicts. They contend this ambiguity compromises India’s credibility in South Asia. From a legal standpoint, countries may exercise discretion in foreign policy absent specific treaty obligations, especially under principles of non-intervention and sovereign decision-making.
3.2 Principle of Non-Intervention
Article 2(4) of the UN Charter prohibits using force or interference in other states’ internal affairs. India’s neutral posture might be legally permissible; however, it is suggested that moral legitimacy and political capital require transparency when confronting historical adversaries, pointing to a tension between legal compliance and diplomatic efficacy.
Case Law Analysis
Nicaragua v. United States (1986)
In Nicaragua v. United States (ICJ), the Court held that states must not support military or paramilitary actions infringing upon another state’s sovereignty. Critics likens India’s propensity to overlook support for Pakistan from third states to such precedent, urging India to demand accountability when external actors embolden adversaries.
“India must ‘call out’ supportive nations otherwise it cedes the mantle of principled opposition.”
Australia v. Japan: Whaling in the Antarctic (2014)
Although seemingly unrelated, this case underscores a nation’s ability to litigate international commitments when treaties are disregarded. Critics infers that India could similarly pursue international adjudication or arbitration when its strategic interests or legal commitments, are undermined.
– Domestic Legal Framework
1. Parliamentary Oversight
India’s Constitution vests foreign affairs with the Executive, yet parliamentary oversight under Articles 105-105A and legislative resolution powers points to a delineated legal structure. The critics argue that current leadership has concentrated strategic decision-making outside robust legislative scrutiny, thereby weakening accountability.
2. Statutory Accountability
The Foreign Contribution (Regulation) Act (FCRA) and Official Secrets Act govern foreign interactions at the administrative level. Critics suggest the ad hoc approach to foreign relations may skirt transparent compliance with institutional requirements, raising concerns about executive overreach beyond legislative control.
Legal Jargon
Critics employ terms such as “strategic autonomy,” “non-alignment,” and “geoeconomic leverage.” Each carries legal and political connotations:
Strategic autonomy suggests freedom to forge policies without binding influence.
Non-alignment, rooted in the 1955 Bandung Conference, references a political doctrine but has evolved into a legal posture concerning non-alignment as part of sovereign equality.
Geoeconomic leverage encompasses trade, investment, and multilateral bargaining power-areas governed by treaties such as BIMSTEC, SAFTA, and others.
Implications under International and Indian Law
Critics imply that if India wishes to reclaim diplomatic heft, its foreign policy must transition from ad hoc politics to rules-based engagement. In legal parlance, it demands embracing:
Multilateral treaty commitments (e.g., CPTPP, RCEP)
Consistent state conduct reinforcing opinio juris
Transparent internal mechanisms-parliamentary and judicial, for policy accountability
Such measures align India with customary international law and bolster its credibility in global and regional institutions.
Conclusion
This article articulates concerns about India’s foreign policy: diminishing trust, ad hoc diplomacy, and lack of institutional accountability. Legally, India remains within its treaty obligations; however, the normative environment, underpinned by pacta sunt servanda and opinio juris, demands consistency, predictability, and transparency. While there is no formal breach of law, there is a jurisprudential and normative imperative for India to strengthen its commitment to rules-based international engagement.
Case law from ICJ jurisprudence underscores the utility of legal recourse and normative clarity, meaning India can and should frame its diplomacy within established legal parameters. Ultimately, the critique serves as a clarion call for India to augment its diplomatic strategy with legal robustness, transforming perceived strategic errors into opportunities for normative leadership.
