Good faith: bad faith

The question that whether India honours its bindings under international agreements in good faith or bad faith keep surfacing whenever India negotiates for entering into new agreements. While international agreements are meant for governing the relationships between, and by, the States, the principle of 'good faith' sustains these relationships. However, at times, few States, including India, breach such bindings through interpretation of language of the agreement to their advantage, without bothering that it may be against the core object and purpose of the treaty.

Such 'bad faith' of ignoring the object and purpose of treaties is rationalized either through a textual approach in reinterpreting the ordinary meaning or by exploiting the reservations while ratifying or acceding to the treaties. Misinterpretation under a textual approach adversely affects the principle of good faith as it neither includes the intentions of the parties nor the teleological aspects.

States have customarily followed the principle of pacta sunt servanda (agreements must be kept) from ancient times but Vienna Convention of Law of Treaties of 1969, especially its Article -26 and 31, binds them to perform and interpret all agreements in good faith.

Unfortunately, the India seems to lie in the category of States that takes advantage of interpreting the agreements which only suit their interests while ignoring basic spirit of the agreements. On gaining independence from the British Raj in 1947, India annexed princely States in complete disregard of the spirit of the Instrument of Accession. On its heels, Indian invaded and illegally occupied the valley of Kashmir. Once the hapless Kashmiris rose against the aggression, India played the victim card and approached UN for settlement of the dispute and agreed to hold plebiscite for 'determining the will of the people.' This UN intervention bough India a temporary breather, but it never honoured its obligation to hold a plebiscite.

Violating UN resolutions, India held fraudulent elections in a disputed territory instead of holding a plebiscite. Elections can only be held in territories that are rightfully in the dominion of a State and Kashmir remains a disputed territory illegally occupied by India. This was the first incident of twisting of words of a covenant to suit self-interest.

Later this behaviour became a larger practice norm of Indian's diplomatic and strategic culture. Its sub-conventional warfare and fuelling of insurgency in erstwhile East Pakistan, in full violation of the UN Charter, is clear evidence that India seldom acts in good faith. If it were not for political interests of the West, India would have been declared a pariah State. It is amazing that the world did not take notice of Indian Premier Modi's clear admission that he was part of India's design to nurture, harbour and support terrorism and insurgency in Pakistan's Eastern Wing thereby splitting the country into two halves. It's not only Pakistan that has suffered from Indian bad-faith; other regional States like Sri Lanka, Nepal and Bhutan have also been its victim.

While India has violated UN Charter many a times, it has also breached many bilateral and multilateral agreements in nuclear field. In 1974, India conducted nuclear test by diverting the nuclear material that was provided to it for peaceful purposes. In doing so, India not only breached its international agreement reached with Canada but also violated its agreements with IAEA. New Delhi displayed bad faith by terming a weapon test as a peaceful nuclear explosion or PNE.

The world took note of India's bad faith and in 1975 Nuclear Supplier Group (NSG) was formed as a non-proliferation measure. NSG exercises control and imposes checks that States receiving nuclear technology for peaceful purposes do not follow Indian bad faith to make nuclear weapons. Interestingly, the concept has gone full circle and turned on its head because the same group of countries now wants to treat the proliferators by admitting it to its fold.

Since its so-called PNE of 1974, India has continually proliferated vertically, stockpiled nuclear weapons and amassed delivery systems. In pursuit of its dream of revising the global order and entering the club of nuclear weapon states, it conducted five more nuclear tests in 1998. This time bad faith was at full display. Ironically, the international community let go of India with a slap on the wrist by merely expressing the concerns on nuclear tests. Later, New Delhi managed to rally support to the planned aggrandizement and vouch for playing a larger role. It has been allowed to build nuclear weapons and a large military force to pursue the goal.

The West began accommodating India as an emerging regional power. Indian bad faith was visible yet once it exploited geopolitical and geo-economic interests for gaining a waiver from NSG for accessing nuclear material and technology without taking the mandatory NPT obligation. This would cause irreparable damage to the rules an organization that was solely created as a consequence of an Indian nuclear explosion.

In the so-called 'good faith' debate, some world powers are 'helping' India to meet its nuclear energy requirements. In turn, India is diverting saved domestic Uranium for military purpose. The lax agreements with supplier States may have loopholes that India could use in bad faith to divert safeguarded material to the military side. In fact, India also managed to keep eight reactors out of IAEA safeguards again a case of bad faith.

India is well aware of ICJ jurisprudence on the issues of object and purpose of agreements, interpretation of treaties and observance of the principle of good faith. It's bad faith presides the global norms that follow a common good faith. A closer inspection of the recent agreements that India has entered reflects the behaviour. India is a party to Convention of Nuclear Safety (1994) but has not made autonomous nuclear regulatory which is one of the fundamental requirements of the Convention. Recently, India ratified the Convention on Supplementary Compensation without instituting any domestic liability regime that is yet again a move for gaining access to nuclear technology with a bad faith. More recently, India has been found in violation of UN Security Council resolutions by extending cooperation to North Korea which again depicts Indian bad faith.

Very few states have noticed Indian bad faith while some States seem to look the other way and ignore bad faith, either due to reasons of ignorance or complicity. Today these states are anxious to make India member of NSG contrary to raison d'être of the NSG. No wonders, if there is movement towards giving a permanent seat to India in UN Security Council while ignoring its non-compliances to the very resolutions of this apex body.   

Author is LLM in Public International Law from University of London and is a free-lance writer. He can be reached at iftekhar2760@gmail.com.