India and International Law is an initiative of the Society which focuses on the development and overlap of the domestic law of India with International law. As a first in the country, we will collaborate with students, academicians and professionals to look at international law from a lens of its relationship with Indian Law.
And we are glad to present the first blog series under the initiative. In this series, Mr. Hakim yasir Abbas, a guest faculty at Jamia Milia Islamia, talks about constitutionalization of international law in India. The blogs on the issue by Mr. Abbas will be published every Monday.
Second Post: The Muddled Science of Comparative Law: Terminological Hitches, Characteristic Glitches and Jurocomparatology as a Way Out of the Quagmire- Blog II (A)
Hakim Yasir Abbas
Globalization has shrunk the world and changed the manner in which human beings interact with each other. It has done so for legal profession[i] as well and more so in regards to “international and cross-border” legal and constitutional dialogue.[ii] The inevitable result has been the dilution of boundaries between ‘international law’ and ‘domestic law’, the reflections of which we can find in India as well.[iv] This convergence of international and domestic law, even though valuable, has raised some serious legal, philosophical and methodological challenges. These challenges and their rationalization will be the subject-matter of this blog. However, due to the paucity of space, I am writing this blog into three parts: Blog II (A), Blog II (B) and Blog II (C). The objective here is to highlight the challenges that exist in relation to using “international law” as a tool of interpretation, tracing these challenges in the Indian jurisprudence and using different theories and reasons to rationalize these challenges. This part of the blog [Blog II (A)] will provide an introduction and will analyse the problems related to terminology and the nature and scope of comparative legal analysis.Continue reading.
First Post: Domestication of International Law in India: A Connubial or a ‘Concubine’-al Indulgence? – Part I
Hakim Yasir Abbas
“But, sir! How can we regard international law as law when we cannot enforce it?”
Introducing ‘international law’ to law students is a tough task. No matter how stalwartly you argue a case in favour of international law, the deficiency of an effective enforcement mechanism will always butcher it for you. Some may use Article 51(c) of the Indian Constitution to tone down the rote-learning process slightly, however, most of the time it backfires.
“So, you admit that it cannot be enforced because it falls within the Directive Principles of State Policy which are non-justifiable.”
The only exception to this seems to be those students who have participated in a moot court competition involving international law. For them (as it has been for me) international law is the new and future world order. The unfortunate outcome of the neglect that international law receives in law schools and in the courts is the peripheral treatment of international law in comparison to municipal law. Even though international law has comprehensively evolved as a normative system over the last few decades, the majority of Indian legal fraternity (maybe excluding practitioners involved with private international law) continues to treat it as a “waning fraction of contemporary legal jurisprudence”. Continue Reading