India’s Strange Position on the Additional Protocols of 1977

After four decades of their adoption, India continues to have an ambivalent position on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. India has not yet become a party to the two Additional Protocols (APs). While it has not explained anywhere its position for not becoming a party, its recent clarification in the form of an answer in the Indian parliament does not provide any reasons for not becoming a party to the APs. This clarification came in the way of a response by the Minister of State for External Affairs to a question posed in the lower house of the Indian Parliament on 02 January 2019. The question posed by a Member of the Parliament sought clarification as to whether steps have been taken to ratify the APs and if not, what are the reasons for not becoming a party, if necessary, with reservations. The question posed by a Member of the Indian Parliament is as follows:

(a) whether steps have been taken to ratify the Additional Protocol I and II to the Geneva Conventions;

(b) if so, the details thereof and the steps taken to bring domestic laws in compliance with the Protocols; and  

(c) if not, the reasons for abstaining in spite of the availability of the option of ”ratification with reservations”?

The answer provided by the Minister is, though precise, however, surprisingly clarifies less and leads to several inferences on India’s position on Additional Protocols I and II and on its practice on reservations to treaties. For the questions (a) and (b), the answer given is:

No decision has been taken to ratify the Additional Protocols I and II to the Geneva Conventions;

This part of the answer fairly presents the policy position.  However, the second part of the answer states a factual position about the APs but obscures the critical part of the reasons for non-accession. It also presents a conflicting legal view on reservations to treaties in general and on its practice on reservations in particular. The answer given to question (c) reads:

The Additional Protocols I and II do not have provision concerning option of ”ratification with reservation”.

Reasons for not becoming a party to APs

From this part of the answer, it is deducible that India has certain objections and differences with the content of the APs. Further, it can be fairly inferred from this answer that as the APs do not provide for reservations, it cannot become a party with reservations.  The question posed clearly sought the reasons for non-accession. The answer evidently refrains from giving any. As there is no official clarification in the past too, India’s views during the negotiations on various aspects of APs may offer some explanation for refraining from becoming a party. India actively took part in the negotiations of APs. The major advances made by AP I to the four Geneva Conventions were supported by India. For example, India supported the expansion of the definition of international armed conflict to include national liberation movements. India was of the view that ‘adoption of Article 1 with its paragraph 4, was an important achievement in the development of international humanitarian law’ (Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-77), Vol. VI, p.53). India also did not express any objections to the important provisions on means and methods of warfare, like Articles 35 and 48. Similarly, it also supported the modification of combatant status under Article 44 (3). In consonance with its view on national liberation movements, India felt that this ‘article would strengthen the cause of liberation movements’ (Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-77), Vol. XV, p.162).

One issue on which it expressed clear objection was the International Fact-Finding Commission. India was of the view that there was no need for the Commission. The Final text of the AP I makes the International Fact-Finding Commission optional in nature. Article 90 which deals with the Commission provides that a State has to recognize its competence separately. Therefore, a State can become a party without recognizing the competence of the Commission. In accordance with its objection at the time of negotiations, India can become a party to AP I without accepting the competence of the Commission. Going by India’s views at the negotiations on foregoing issues, it becomes difficult to discern the reasons for its refusal to become a party to AP I.

India’s views on AP II are not the same as AP I. It was apparently against AP II. It was of the opinion that internal armed conflicts were law and order problems falling under the domestic jurisdiction. It further observed that common Article 3 was justified in four Geneva Conventions because it was required to address the national liberation movements then. Since the national liberation movements were covered in AP I, India found that there was no reason for the adoption of a Protocol specifically dealing with the internal armed conflicts. (Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-77), Vol. VII, pp. 202-204). However, it did not oppose the adoption of AP II during the negotiations. India’s subsequent practice testifies to a changed position on internal conflicts. It became a party to the treaties which are applicable to internal conflicts. These are: Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II as amended on 3 May 1996), Convention on Certain Conventional Weapons (CCW) as amended on 21 December 2001 and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. Acceptance of these treaties makes it clear that no longer India subscribes to the view that internal conflicts, other than national liberation movements, are law and order situations. It seems at least clear from the positions taken at the time of negotiations and from the subsequent practice that there is no major hindrance in India becoming a party to the APs. Despite that, the answer provided by the Minister suggests at other issues with which India may have differences. The probable concern would be that secessionist movements might argue for the extension of APs to them. While the purpose of APs is not to make any value judgment on the political demands of the parties to the armed conflict, this is where the reference to reservations in the Minister’s answer carries significance.

Ratification with reservations

It is possible to infer from the second part of the Minister’s answer that India would have become a party with reservations, had the Protocols provided for that possibility. This offers a perplexing position so far as reservations to treaties, in general, are concerned. Though the Protocols do not provide for reservations, they do not prohibit either. As provided in Article 19 (a) of the Vienna Convention on the Law of Treaties (VCLT), a State may formulate a reservation, unless the reservation is prohibited by the treaty. Reservations and declarations made by other States to APs attest to it. Therefore, the absence of a provision permitting reservations is itself not a prohibition on the making of reservations. In such cases, a reservation’s compatibility with the object and purpose of a treaty that determines the validity of a reservation. It may be argued that since India is not a party to the VCLT, the reservations regime provided therein is not binding on them. If that is the case, then there is no binding obligation on India not to make reservations when a treaty does not explicitly provide.

On the other hand, India has the history of making reservations to treaties which do not expressly provide for it. An example of this is the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. India names its statements appended to these Covenants as declarations, rather than as reservations. However, as provided under Article 2(1) (d) of the VCLT, it is not the name that is given to the appended statement, but its ability to exclude or modify the legal effect of the relevant provisions that determines the nature of the reservations. Some of the declarations made by India to both the Covenants arguably amount to reservations, excluding or modifying the legal effect of relevant provisions. This is so specifically concerning the declaration made to Article 1 of both the Covenants, which deals with the right to self-determination. Several countries objected to the declaration, claiming that it modifies the legal effect of the provision and contrary to the object of the treaty. The States that objected to this declaration are France, Germany, Netherlands, and Pakistan.

While there is no obligation under international law for a State to give an explanation for not becoming a party to a treaty, it is not the same when clarification is sought in the domestic legislative body. The answer by the Indian Minister in the Parliament, while not providing the necessary reasons for non-accession to APs, leads to conflicting conclusions on India’s state practice and on the legal position on reservations to treaties.