ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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The Perpetual Problem of Palestine–Israel: A Legal Analysis

Constant violence has marred the relations between Palestine and Israel for more than six decades. Recent tensions arose due to evictions by Israeli police and the ensuing damage to a Palestinian mosque. Clashes with the public made matters worse and a ceasefire was possible only after many days of relentless bloodshed. Many term the Israeli occupation of territory as “belligerent,” especially when weighed on the scales of international and humanitarian law. It, therefore, becomes imperative to understand the conflict and subsequent actions from a legal point of view. This article tries to understand the various international laws and agreements which apply to the conflict and also aims to understand the approach of judicial bodies towards this dispute.

‘Surgical Strikes’ by India

The type of surgical action undertaken by India across the Line of Control in October 2016 in response to the terror strikes carried out by groups operating from the territory of Pakistan is neither unprecedented nor unusual in the contemporary global scenario. However, these strikes require international legal justification and have to be viewed in the context of established norms of international law. India needs to institutionalise the architecture for factoring in international law for conducting external affairs.

Vernacular Nations

Postcolonial Asia offers at least seven types of states and nations. In their somewhat uncritical pursuit of total nationalism, territorial Asian states compete with their archipelagic cousins. The sea gypsy nations--spread across the South China Sea and other East Asian states--reject the monopoly of land as the only inhabitable space, discounting territory as an essential constituent of a nation. Ironically, while history kept them outside the fold of the territorial states, the present attempts to co-opt them. Only by challenging, as the Asian sea gypsies do, land's claim to being the sole inhabitable territory within law, and rethinking the sea as a place of danger can we truly vernacularise our statist imaginations.

Silence on Investor –State Disputes Debate

The Law Commission of India's 260th report contains a seemingly innocuous suggestion to include a clear clause for consent to arbitrate investment disputes in India's 2015 draft Model Bilateral Investment Treaty. There is an intriguing absence of any explanation for this suggestion, which is curious, especially when viewed in the context of the global public debate on investor-state dispute settlement clauses. This suggestion requires robust public debate in India and must not silently sail past.

WTO and Rules of Origin

The WTO panel report on the Indo-US dispute over rules of origin in textile and apparel products imports shows how the Agreement on Rules of Origin could be used, and how inequitable its resolution could be. It also shows that protectionism could take new forms, and confirms some of India's worst fears if origin could be conferred other than on the basis of the restrictive criteria of substantial harmonisation of the rules of origin.

Sardar Sarovar Judgment and Human Rights

The Sardar Sarovar judgment is, in the Supreme Court's own words, fundamentally about the human rights of displaced people. However, rather than providing a full reasoned analysis of the human rights situation, the judgment focuses on the various administrative procedures put in place by the state to deal with the issues arising from the Sardar Sarovar Project. This is rather surprising. Even if we assume that domestic law is underdeveloped with regard to eviction, displacement and rehabilitation, there was substantial guidance from the international level to help the court in reaching a decision.

India and the International Red Cross

Though India has not ratified the protocols relating to humanitarian law applicable to armed conflicts, in a recent judgment, the Supreme Court held that the courts are under an obligation to give due regard to international conventions and norms for construing domestic laws.
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