The first part of this analysis delved into the Supreme Court’s judgment in Ashok Kumar Sharma & Ors v. Union of India, where it misread the International Rule of Law (IRoL) by focusing on its jurisdictional limitations and its deference to the ICJ. This section will examine the Court’s prioritization of contractual obligations over international humanitarian concerns and its preference for leaving critical decisions to the executive, perpetuating the structural inequalities critiqued by TWAIL scholars.
Tipped Balances and the Weight of Foreign Laws
The second reasoning offered by the Court in the dismissal of the claim related to the contractual obligations owed by Indian corporations, derived from the treaties and contracts they are party to. The bench also provided that “the grant of injunctive relief by this Court would necessarily
implicate a judicial direction for breach of international contracts and agreements.” A large chunk of most international agreements seeks to further the vested interest of a transnational ruling elite, whose ever-growing influence profoundly shapes global policies and law. Chimni refers transnational ruling elites as a powerful group of global political, economic, and social leaders who, despite their origins in the Global South, align with the interests of transnational capital and Northern states. They promote policies that prioritize global capital over the welfare of the poor in developing countries. One views a need within third world states to produce over-competitive regulation, to attract continued foreign investment.
In the present case, the Court’s reluctance to halt arms exports highlights how the Indian state seeks to accommodate corporate interests to further its broader economic and political objectives. As Bantekas argues, the value of the law increases with the number of its end users. If it alienates non-state actors and corporations from using the law, its value diminishes exponentially. By prioritizing corporate interests over international obligations, the Court reinforces this dynamic, where legal decisions serve political and economic considerations. Thus, this can be seen as an attempt to assuage the economic and political interest of the corporation, to further the economic interest of the State. In this way we see at play the law, politics, and the politics of law— where the economy determines the weight of the political.
The Petitioner instantiates numerous licenses and approvals, alongside reports of exports by corporates funding ammunition to Israel—a serious violation of India’s obligations outlined in the Genocide Convention and international law. However, the Court consciously chooses to ignore these sources, relying instead on treaties and contracts entered into by the corporation, arguing that “grant of injunctive relief by this court would necessarily implicate a judicial direction for breach of international contracts and agreements.” This is noteworthy, in that the Courts approach differs from an approach rooted in third world ethics which necessitates an appreciation of both formal and material sources. Our critique stemming from TWAIL, finds unfortunate that the Court discarded substantial evidence of arms export to Israel even during the conflict, on the ground that treaty law required reverence to contractual obligation, over all else. We observe here that the Court’s reasoning reflects a larger issue with how formal sources of international law, such as treaties and contracts, are treated as a gospel truth, while dismissing material sources that provide contextual evidence of harm. Historical, political, and economic realities, which reflect the human impact of these transactions, are relegated to a secondary status unless explicitly corroborated by formal treaty law. Such an approach is at odds with third-world ethics, as articulated by TWAIL scholars, which call for a holistic appreciation of both formal and material sources to understand and address the injustices perpetuated by the international legal order. This case demonstrates how the over-reliance on formal sources undermines the ability of international law to grapple with systemic harm. Engaging with material sources, such as evidence of arms exports and their devastating impacts, is essential to challenging the inequitable legal structures that sustain such practices. By failing to do so, the Court reinforces an approach to international law that privileges power and profit over justice and accountability.
Walking the tight rope: Let the Executive Do it
The petition sought, amongst others, relief on grounds of India’s international law obligations under Article 51(c) of the Indian Constitution. This places a two-fold duty. First, Article 51(c) requires the Indian State to promote international peace and security and to encourage the settlement of international disputes. This obligation would thus ask of the judiciary a judgment in favour of petitioners, one that would stop the sales of arms. Second, Article 51(c) also aims to promote respect for international law and treaty obligations in their dealing, one which the court ultimately did, deferring instead to the authority of the ICJ and the contracts between investors. This is noteworthy, in that these two obligations, in the instant case, act in contrast with each other. International Law (capital l/L, emphasis added) has become a language of hegemony. Any translation of this language is seen as an infraction, one that seeks to dilute the universalising project of the West. In this context, “International Law” has come to represent not just a set of rules but a narrative shaped by power relations. The Court’s reliance on treaty obligations (formal source) reflects a subconscious adherence to this dominant narrative, one that treats international law as something untouchable, a “gospel truth” that cannot be questioned or deviated from. We argue, that it is on this account, that the Court favours the latter over the former. Yet perhaps, we are wrong, and the Court’s reasoning is not in fact intentional. TWAIL scholars have also argued that the hegemony of International Law, has ingrained in practitioners, a subconscious conflation of doctrine as divine. Every time one has the task of interpretation thus, they subconsciously gravitate towards a formalist understanding. While we argue that the Court’s reasoning reflects an adherence to hegemonic international law, we acknowledge the possibility that the Court may not have been intentionally reinforcing this hegemony. Rather, it could have been a product of ingrained legal formalism or a constrained understanding of its obligations.
It further clarifies that the observations it makes, are not intended to reflect any opinion in both the conduct of foreign policy and of the actions of any sovereign nation not subject to the jurisdiction of the Court. These statements highlight the thrust of the authors’ argument, that the universalisation of international law, has led to anxieties in Global South actors to ‘reform’ the law, only furthering the cyclical inequality of the law (Pahuja, 35-37). In doing so however, sources become International Law and decide the boundaries of what the law can be. By this we mean, that international law reproduces itself. For instance, the Court despite being an agent of international law does not find it its place to further any reform. Even in its silence, however, the Court has done what it hoped to avoid— creating law.
Conclusion
The hope instilled in us by TWAIL critique, sees an avenue for bridging the critical gap between law and justice by various actors, one of them being— an activist judge. As Eslava and Pahuja articulate, this judge “wanders beyond strict jurisprudential lines in her search for re-establishing law’s ownership of justice” In this case, however, the Court rewrote again, the same lines given to it by its oppressors in its silence. We wish the court spoke, for it would have spoken the language of justice.
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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.
