Blurb: A petition was filed in the Supreme Court, seeking the suspension of military exports from India to Israel in light of the unfolding armed conflict in the Occupied Palestinian Territory. The authors argue that the Supreme Court’s decision in this case of Ashok Kumar Sharma & Ors v. Union of India is a lost opportunity and analyse its decision in light of a Third World Approaches to International Law (TWAIL) critique.
Recently, the Supreme Court of India was confronted with a petition filed on behalf of former bureaucrats, activists and senior academics, seeking the suspension of military exports from India to Israel in light of the unfolding armed conflict in the Occupied Palestinian Territory. We view the Supreme Court’s decision in this case of Ashok Kumar Sharma & Ors v. Union of India as a lost opportunity and analyse its decision in light of a Third World Approaches to International Law (TWAIL) critique. We begin by turning to the International Rule of Law (IRoL), establishing it as a foundational principle from which the international order comes into being. We establish that although the IRoL within itself governs international peace and security, the manner of its application within this judgement is a point of concern in that its employment in the decision has defeated its very purpose. This misreading of IRoL, establishes three points of disquiet visible within the judgement.irst, we dissect the Court’s belief that it lacks jurisdiction. We view this as a product of the universalisation of the ICJ, in its perception as being the only credible body to adjudicate upon matters of international law. Second, we turn to the formulas by which Courts often choose which sources and evidence of international law to refer to, drawing the distinction between a preference for formal sources over material. Third, we view this as only furthering the general anxiety of the Judiciary, where Courts in the third world dislocate themselves as an authority and instead relegate its function to the executive.
The Rule of Law Blueprint
The IRoL may be understood as the application of the rule of law principles to relations between states and other international legal personalities. Defining IRoL is a common endeavour for legal scholars, yet the focus of this piece is not to offer a definitive definition. Instead, we engage with the widely accepted objectives of IRoL, as recognised by scholars, to critically assess the role of domestic courts within this framework. In a 2004 report on the rule of law, UN Security General Annan characterised the rule of law as a governance principle encompassing accountability of all actors, public promulgation of laws, equal enforcement, independent adjudication, alignment with international human rights standards, legal certainty, and procedural transparency, among others. In its ideal conception, IRoL seeks to provide a structure to principles of justice, equality, and fairness in the global legal order.
However, despite its purported goals, it predominantly addresses secondary aspects of international relations, avoiding the core inequalities within the international legal system. For instance, IRoL encourages initiatives aimed at eliminating poverty and hunger yet frequently neglects the underlying causes of these socio-economic disparities. This misalignment between the theory and practice of IRoL becomes particularly evident when examining the role of domestic courts, which act as one of the agents of international law.
Jennings and Scelle argue that domestic court’s decisions on international law have a significant impact beyond domestic borders; these judgments are not simply “facts” that the international legal order may choose to acknowledge, but rather play a crucial legal role. They suggest that domestic courts have the authority to decisively shape legal rights and obligations under international law, partially filling the gap left by the limited reach of international courts in upholding a consistent international rule of law. In addition to their enforcement role, domestic court decisions constitute a source of general principles of law and State practice for the purpose of identifying and developing customary international law.
Nollkaemper similarly contends that domestic courts can review national actions against international obligations to ensure compliance. By interpreting and applying international law, domestic courts not only enforce but also clarify and develop its content, thereby strengthening the international legal framework. In India, domestic courts have often expanded the scope of human rights by referencing international law, showcasing their potential to advance progressive legal principles. However, there are instances where courts, by rigidly adhering to established doctrines, risk perpetuating structural inequities inherent in international law. For instance, in the present case, the court invokes the doctrine of sovereign immunity to conclude that it lacks jurisdiction to grant relief. While such an approach aligns with a formalistic interpretation of state sovereignty, it inadvertently facilitates a state’s evasion of accountability for alleged human rights violations. Crucially, this perspective overlooks the possibility of adjudicating India’s obligations under international law, irrespective of the court’s jurisdiction over Israel’s conduct—a point that is explored in detail in the subsequent section. Chimni views this as part of a global network of legislators and judges who prioritise formal compliance over substantive justice, promoting unity under the pretence of the International Rule of Law (IRoL) while masking deeper inequalities.
This comes from the misreading of IRoL, where the Court views, as a pressure on themselves, the obligation to observe and comply with international law, respect bilateral and multilateral instruments, and defer to international dispute settlement mechanisms compliance with IRoL to achieve global unity. Chimni argues that this emphasis on compliance with international norms obscures the reality that IRoL, as it currently exists, does little to address the unequal distribution of power and resources within the international system. Domestic courts, as Goldoni contends, serve “two masters”: the domestic legal system and the international legal order. This dual allegiance leads to a paradox; while domestic courts are tasked with protecting IRoL, they often reinforce its limitations by adhering to the very norms that perpetuate inequality by national interests or deferring to the political branches rather than challenging the structural inequalities inherent in international law. In the subsequent sections, by undertaking a deconstructive and contextual reading of the Court’s decision in the Ashok Kumar Sharma case, we argue that by rejecting the petition, the Supreme Court misidentifies IRoL.
The ICJ: The (only) Door to Justice
The Court’s first reason for rejecting the petition—that it lacks jurisdiction over Israel—misses the mark entirely. The petitioners are not asking the Court to adjudicate upon Israel’s conduct amidst conflict directly, but rather seeks to address India’s obligations under international law. This narrow reading effectively sidesteps the real issue: whether India, by continuing to export arms, is complicit in potential violations of Genocide Convention. By failing to engage with these obligations, the Court adopts a restricted and formalistic approach to international law, ignoring India’s duty under Article III of the Genocide Convention which clearly holds states accountable for complicity in genocide. In the Bosnia v. Serbia case, the Court held that states bear the responsibility to use all reasonably available means to prevent genocide to the greatest extent possible, especially those states capable of effectively influencing individuals who are likely to commit or are already committing acts of genocide. Further, Common Article 1 of the Geneva Convention imposes a clear obligation on states not to assist in war crimes, including by supplying arms to perpetrators of atrocities. As a state party to the four Geneva Conventions, India is obligated to uphold their provisions, which are also recognised as customary international law and jus cogens. Therefore, under Article 51 of its Constitution, India is expected to fulfil its international obligations. The Court’s avoidance of this point is concerning, but what we find more concerning is the Court’s reluctance to engage with the claim of Genocide by UN Special Committee, UN’s Commission of Inquiry, and Special Rapporteur on Human Rights. Just as the advocate representing petitioner mentions that Israel is committing Genocide, the Court, almost reflexively, dismisses this as a “generic statement.” But this dismissal is more than just avoiding a politically charged label—it reveals a deeper reluctance to confront international law in a meaningful way.
The issue is not whether the Court should definitively declare Israel’s actions as genocide, but rather implores an exploration as to the reason why the Court was so quick to avoid even the possibility of such a discussion. We sense that the Court’s discomfort stems from the International Court of Justice’s (ICJ) handling of Israel’s conduct. Since the ICJ has not labelled the situation as genocide, the court seems unwilling to use any language that could deviate from or challenge that stance. But this is where the court misreads the IRoL.
As noted by Cassese, domestic courts are not passive observers of international law; they are, and should be, critical actors in safeguarding the global legal order. This requires considering “metanational considerations” such as the protection of human rights and the repression of international crimes, rather than deferring to international judicial bodies or prioritizing national interests. The Court’s reading of the IRoL here is reductive, framing it solely in terms of adherence to treaties as normative sources, states, and corporations as legal actors, and the ICJ as the ultimate adjudicator. This approach, however, is predicated on the flawed assumption that the ICJ is impartial and universally accessible, which is part of a broader critique of the global north’s objectives in shaping international law as ‘universal’.
The first part of this analysis argues that the Court narrowly claimed it lacked jurisdiction over Israel, ignoring India’s obligations under international law, including the Genocide and Geneva Conventions, which prohibit complicity in war crimes. This judgment reinforces structural inequalities in the international system, prioritizing formal compliance over substantive justice. The Court’s reluctance to engage with claims of genocide and deference to the International Court of Justice (ICJ) reflects its misinterpretation of IRoL as requiring adherence to treaties and international mechanisms. We urge domestic courts, as critical actors, to address international obligations substantively, advancing human rights and justice rather than perpetuating global power imbalances. In the second part, we will examine how the Court’s emphasis on contractual obligations and deference to the executive further perpetuates systemic inequalities in the international legal order.
Click here for Part II of this series.
Garvit Shrivastava is a penultimate year law student at Jindal Global Law School. His research interests include public criminal law, international humanitarian law and critical approaches to international law. Adithi Rajesh is a final year student at Jindal Global Law School. She’s interested in critical approaches to international law and international human rights law.
