International Litigation by and against India

In today’s fast changing world India is showing very slow yet important sign of opening up to international adjudication as a means of international dispute settlement. Bimal N. Patel’s scholarly work has come out at a very appropriate time.

The book is divided into four parts.

Part I: International Court of Justice Cases;

Part II: International Tribunal for Law of the Sea Case;

Part III: Permanent Court of Arbitration Cases;

Part IV-A: World Trade Organisation Cases where India is a complainant;

Part IV-B: World Trade Organisation Cases where India is a respondent.

The present volume offers a commentary of the international litigation cases taken by and against India at the International Court of Justice (ICJ), International Tribunal for the Law of the Sea (ITLOS), the Permanent Court of Justice (PCA) and the World Trade Organisation (WTO). This important work will hopefully guide further research and Indian diplomatic conduct in the country’s trade relations. It features India as an international litigator. It is a timely piece of scholarly work, especially when talk of trade equality/parity is topical in the electronic and print media. Since about June 2018, Japan and China have taken tentative steps towards improved relations in response to‘tradewar’measures against both countries by the Trump Administration of the USA.The apparent thawin what has been afrigidandat times hostile relationship underscores the de-stabilising impact of President Trump’s aggressive, and some may argue provocative ‘America First’ determination. India, judging from the cases mentioned in this book, hashad its fair share of disputes with aspects of administrations inthe USA. The author of this volume acknowledges the contribution of his fourteen senior students who assisted in the compilation with ‘keen research and analytical acumen’ of the fifty-four cases studied for this book. It was a monumental exercise that would have required the dedication of all concerned to bring this book to the attention of the international community. This unusual volume could be considered useful as a model for other countries to produce a similar compilation of cases that have affected their business and political relations in the last few decades -perhaps particularly cases since early-2017, given the threatening trade policies being proposed by the present Government of the United States. There are Four Parts to this study – the last of which is in two Sections, ‘A’ and ‘B’ that collectively covers 43 cases.The book demonstrates India’s slow,yet important sign of opening up to international adjudication as a means of international dispute settlement. Part I focuses on the Cases that were heard by the ICJ that related to territoriality and sovereignty issues. Specifically, six cases were analysed in this Part. They are: (i) concerning the right of passage over Indian territory; (ii) jurisdiction of the ICAO (International Civil Aviation Organisation) Council; (iii) a case concerning the trial of Pakistani prisoners of war; (iv) the case concerning the aerial incident of 10 August 1999; (v) a case relating to the obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament; and, (vi) the (Kulbhushan) Jadhav Case. Part II is devoted to the Case of the Enrica Lexie Incident that was taken to ITLOS, a case that was brought to ITLOS by Portugal against India in an application dated 26 June 2015. The three cases presented to the PCA are analysed in Part III. They are: The Indus Waters Kishenganga Arbitration that involved India and Pakistan; The Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India; and, The Enrica Lexie Incident.

There were at least seven legal issues that the PCA needed to address in the Bay of Bengal Maritime Boundary Case between Bangladesh and India. I mention just three here. The first issue was whether the Arbitral Tribunal possessed jurisdiction to delimit the continental shelf boundary beyond the 200-nautical mile limit. The second issue was that of the selection of the Land Boundary Terminus – the land/sea interface – which was a critical point of the disagreement between the Parties. The third issue was that of the selection of territorial sea basepoints and the delimitation of the Territorial Sea. Several of India’s proposed TS basepoints were challenged on the grounds that they were located on alleged Low Tide Elevations (LTEs) and the existence of those disputed by Bangladesh. The island (South Talpatty as known by Bangladesh and named New Moore Island by India) that was created in by sedimentation deposits from the discharge of the collective waters of the Gangetic Delta during the 1970s and about two decades later disappeared had been the focus of a sovereignty dispute between the Parties. Much more could be said about this case, but word limitation for this review prohibits a lengthy discussion. Suffice it to say that the Tribunal adjusted the provisional equidistance line into a simpler straight line, applying the three-stage equidistance/relevant circumstances methodology within and beyond 200 nautical miles, thereby avoiding the ‘double concave’ Bangladesh coast causing the ‘cut-off effect’. (p.129) All the cases taken to the WTO in the context of this study are discussed in Part IV. This book provides a comprehensive and valuable study of the legal intricacies of international trade and the manner of the arguments put forward by the legal teams in defending their client’s position. Even the mere word ‘against’ can be construed as indicative of ‘aggression’ or ‘hostile opposition’ in trade talks according to lawyers representing a case on behalf of their client. (p. 205). The book is also illustrative of how many Indian industries face major disruption due to European Union anti-dumping and countervailing measures. For example, in Dispute DS408, relating to the Seizure of Generic Drugs in transit (pp. 271– 274) India challenged EU Customs measures used to justify seizures of generic medicines in transit through Europe to destinations in Latin America, Oceania and Africa. These seizures and the delayed and defensive response of the EU to early and repeated expressions of diplomatic and human rights concerns prompted Brazil to join with India to initiate dispute resolution procedures. This book is innovative in that it approaches the subject from a structured and well-organised form outlining the statement of claim/question;the procedural and organizational aspects; the preliminary objections; text of the operative paragraph; summary and analysis of the case and declarations and opinions.The book would make compelling reading for lawyers especially involved in cases dealing with international and regional trade. This comprehensive work is ideally suited for reference use by students, academicians, researchers and professionals in the field of international law, economics, international relations and legal issues impacting on trade practices and related areas.It will be a useful reference work to the legal advisers in government agencies, law companies, advocates and counsels involved with international disputes.

-Vivian Louis Forbes

China Institute for Boundary and Ocean Studies, Wuhan University, Wuhan, China

National Institute for South China Sea Studies, Hainan

School of Earth Science and Agriculture, The University of Western Australia, Perth, Australia

 Contents

1. Case Concerning Right of Passage Over Indian Territory 

2. Appeal Relating to the Jurisdiction of the ICAO Council 

3. Case Concerning Trial of Pakistani Prisoners of War

4. Case Concerning the Aerial Incident of 10 August 1999 

5. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament 

6. Jadhav Case 

7. The “Enrica Lexie” Incident 

8. Indus Waters Kishenganga Arbitration 

9. The Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India 

10. The “Enrica Lexie” Incident 

11. Dispute DS19

12. Dispute DS32 

13. Dispute DS33

14. Dispute DS34 

15. Dispute DS58

16. Dispute DS134 

17. Dispute DS140  

18. Dispute DS141 

19. Dispute DS168 

20. Dispute DS206 

21. Dispute DS217 

22. Dispute DS229 

23. Dispute DS233 

24. Dispute DS240 

25. Dispute DS243 

26. Dispute DS246 

27. Dispute DS313 

28. Dispute DS345 

29. Dispute DS385 

30. Dispute DS408 

31. Dispute DS428 

32. Dispute DS436

33. Dispute DS50 

34. Dispute DS79 

35. Dispute DS90 

36. Dispute DS92 

37. Dispute DS93 

38. Dispute DS94 

39. Dispute DS96 

40. Dispute DS120 

41. Dispute DS146 

42. Dispute DS149 

43. Dispute DS150 

44. Dispute DS175 

45. Dispute DS279 

46. Dispute DS304 

47. Dispute DS306 

48. Dispute DS318 

49. Dispute DS352 

50. Dispute DS360 

51. Dispute DS380 

52. Dispute DS430 

53. Dispute DS456 

54. Dispute DS498