India’s Incorporation of International Law in Domestic Jurisdiction

Updated: Mar 15, 2019

India’s Incorporation of International Law in Domestic Jurisdiction

International Law is the law which governs the Relations of sovereign independent States inter se Municipal law or State law or national law is the law of a State or a country and in that respect is opposed to International Law which consists of rules which civilized States consider as binding upon them in their mutual relations. Kelsen observes that national law regulates the behavior of individual’s International law the behavior of States or as it is put whereas national law is concerned with the international relations the so called domestic affairs of the State. International Law is concerned with the external relations of the State its foreign affairs. Legislature and court systems are different on the international and municipal levels. Where the municipal level uses a legislature to help enforce and test the laws, the international court system relies on a series of treaties without a legislature which, in essence, makes all countries equal. India’s contribution to international law, especially in the field of humanitarian laws, environment conservation and protection, technology and trade laws, cannot be overemphasized. At the same time, India has harmonized many of its domestic laws with international principles and norms in order to fulfil its international commitments. Prominent in this exchange are human rights, environmental laws, the intellectual property laws, arbitration law, trade law and space laws. The implementation of international law in India can be looked at either from the perspective of the role played by each governmental organ, or from the stand point of each field of law.

Theories supporting Relationship between Municipal Law and International Law:-

· Monistic Theory: Monists assume that the internal and international legal systems form a unity. They both operate in the same sphere of influence and are concerned with the same subject matter and thus can come into conflict. If there is a conflict, it is international law that prevails. Some, like Kelsen, argue that this is because international law is a higher from which the state derives its authority and thus its ability to make municipal law and state:-

“Since the basic norms of the national legal orders are determined by a norm of international law, they are basic norms only in a relative sense. It is the basic norm of the international legal order which is the ultimate reason of validity of the national legal orders too.”

However, Monism does not necessarily imply the invalidity of the provisions of municipal law that conflict with international law. The logical necessity for the unity of all legal systems that Hans Kelsens invoked in favor of monism, namely that no conflicts may exist between legal systems, would thus not be satisfied.

· Dualistic theory: Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law. Dualist doctrine considers international law and municipal law to be separate legal orders operating and existing independently of one another. International law is the law applicable between sovereign states and is dependent on the common will of states for its authority; Municipal laws apply within the state regulating the activities of citizens and have the source of its authority the will of the state itself. On this basis neither system has the basis to create or alter the rules of the other. Since both system may deal with the same subject matter it is possible for conflicts between two systems to arise. Where there is a conflict between the two systems, a municipal court following the dualist doctrine would apply municipal law. This might lead to a state being in breach of its international obligations, but that would be a matter for international tribunal.

Other theories concerning the same:-

· Transformation Theory: According to this theory it is the transformation of the treaty into national legislation which alone validates the extension to individuals of the rules set out in international agreements. The transformation is not merely a formal but a substantial requirement. International Law according to this theory cannot find place in the national or Municipal Law unless the latter allows its machinery to be used for that purpose.

· Delegation Theory: According to this theory there is the delegation of a right to every State to decide for itself when the provisions of a treaty or convention are to come into effect and in what manner they are to be incorporated in the law of the land or municipal law. There is no need of transformation of a treaty into national law but the act is merely an extension of one single act. The delegation theory is incomplete for it does not satisfactorily meet the main argument of the transformation theory. It assumes the primacy of international legal order but fails to explain the relations existing between municipal and international laws.

IMPLEMENTATION OF INTERNATIONAL TREATIES IN INDIA

A. Executive Powers to enter into International Agreements

The Central government or government of India has executive power to enter into and implement international treaties under Articles 246 and 253 read with Entry 14 of List I of the Seventh Schedule of the Indian Constitution. The executive powers of Central government or government of India are derived from the legislative power of the Union of India. In this regard, it is to be noted that the executive powers of the Union and State governments are co-extensive with their respective legislative powers. Executive powers of the Union of India are specifically vested in the President under Article 53 of the Indian Constitution. It is pertinent to note that Article 73 of the Indian Constitution confers upon the government of India executive powers over all subjects in which parliament has legislative competence. The executive power of the Government of India extends to matters with regard to which Parliament can make laws. The executive power of the Union extends also to the exercise of such rights, authority and authority as exercisable by the Government of India by virtue of a treaty or agreement (article 73(1) (b)) of the Indian Constitution). However, executive power of government of India to enter into international treaties does not mean that international law, ipso facto, is enforceable upon ratification.

B. Legislative Powers to implement International Agreement

A treaty may be implemented by exercise of executive power. However, where implementation of a treaty requires legislation, the parliament has exclusive powers to enact a statute or legislation under Article 253 of the Indian Constitution. The Article 253 empowers the Parliament to make any law, for the whole or any part of the territory of India, for implementing “any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” Conferment of this power on the Parliament is evidently in line with the power conferred upon it by Entries 13 and 14 of List I under the Seventh Schedule. Article 253 makes it amply clear that this power is available to Parliament, notwithstanding, the division of power between the Centre and States effected by Article 246 read with the Seventh Schedule. Where the Constitution does not require action to be taken only by enacting a legislation or there is no existing law to restrict the executive power of the Union (or the state, as the case may be), the government would not only be free to take such action by executive order or to lay down a policy for making of such executive orders, but also to change such orders or the policy itself, as often as the government requires.

C. Implementation of International Obligations

The basic provision of the constitution of India, by virtue of which international law becomes implementable through municipal laws of India is Article 51 (c). Article 51 (c) of the Constitution enjoins the State “to endeavor to foster respect for international law and treaty obligations in the dealings of organized peoples with one another.”

It is pertinent to mention that article 51 enshrines one of the fundamental principles of State policy (DPSP), embodied in Part IV of the Constitution. The directive principles, according to article 37, are not enforceable through the court of law, nevertheless they are fundamental in the governance of the country and there is a nonobligatory duty on the part of the State to apply these principles in making of laws. Thus, the article 51 and the international law per se are not justiciable in the realm of Indian municipal law. However, the non-justifiability of Article 51 does not preclude government to strive to achieve the objectives of the international treaty, which has been ratified by it, in good faith through executive or legislative actions. Further, judiciary, though not an empowered to make legislations, is free to interpret India’s obligations under international law into the municipal laws of the country in pronouncing its decision in a case concerning issues of international law.

INDIAN JUDICIARY AND INTERNATIONAL LAW

A. INDIAN JUDICIARY AND INTERNATIONAL LAW

In India, though the polity is dual, the judiciary is integrated. Therefore, India has an integrated judicial system. At the top of the system is the Supreme Court of India which exercises jurisdiction in different forms, namely – writ jurisdiction, appellate, original, advisory and that conferred under several statutes. At the next level are the High Courts in the various states. While most states have their own High Courts, some states have common High Courts. The High Courts also exercise writ jurisdiction, regular appellate jurisdiction as well as the power of supervision over all the Courts and Tribunals located in their respective States. The third tier is that of the subordinate judiciary at the district level, which in turn consists of many levels of judges (both on the civil and criminal sides) whose jurisdiction is based on territorial and pecuniary limits. In addition to the subordinate judiciary there are specialized courts and tribunals at the district and state levels to hear and decide matters relating to direct and indirect taxes, labor disputes, The Supreme Court and the High Courts as the courts of records are the custodian of the constitution has an awesome responsibility.

B. International Treaty for Construction of law

Wherever necessary, Indian courts can look into International Conventions as an external aid for construction of a national legislation.15 The Supreme Court in Visakha v. State of Rajasthan[1], took recourse to International Convention for the purpose of construction of domestic law. The Court observed:

In the absence of domestic law occupying the field to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions to enlarge the meaning and content thereof, to promote the object of the Constitutional guarantee.

C. General Principles

1. Construing Existing laws to implement treaty Obligations

Obligations arising under international agreements or treaties are not, by their own force, binding in Indian domestic law. Appropriate legislative or executive action has to be taken for bringing them into force. Although not self-executing under Indian law, implementation of a treaty does not require fresh legislative or executive action if existing administrative regulations or statutory or constitutional provisions permit the implementation of the treaty in question. The Indian courts may construe, in this context, statutory or constitutional provisions that pre-exist a treaty obligation in order to render them consistent with such a treaty obligation.

2. Fostering Respect for International Law

The Directive Principles of State Policy as enshrined in Article 51 of the Indian Constitution enjoin upon the State to endeavor, inter alia, to foster respect for international law and treaty obligations in the dealings of organized people with one another.18 It is a fundamental principle of statutory interpretation in Indian domestic law that, wherever possible, a statutory provision must be interpreted consistently with India’s international obligations, whether under customary international law or an international treaty or convention. If the terms of the legislation are not clear and are reasonably capable of more than one meaning, the treaty itself becomes relevant, for there is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein a specific treaty obligation; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred.

D. Judicial Activism

Judiciary has further broadened the ambit of its role. Higher Judiciary has fashioned a broad strategies that have transformed it from a positivist dispute-resolution body into a catalyst for socio-economic change and protector of human rights and environment. This strategy is related to the evolution of Public Interest Litigation (PIL).

E. Jurisprudence

Relying upon the Article 51, Sikri, C.J. in Kesavananda Bharathi vs. State of Kerala[2], observed as under:

“It seems to me that, in view of Article 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all an intractable law, in the light of the United Nations Charter and the solemn declaration subscribed to by India.”

The Court in Vellore Citizens Welfare Forum v. Union of India and Others,[3] referring to the ”precautionary principle” and the “polluter pays principle” as part of the environmental law of the country, held as follows:

“Even otherwise, once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law.” A survey of Indian jurisprudence, thus, indicates the active role being played by the higher judiciary in the implementation of India’s international obligations.

Various Branches of Law and Their Implementation in India

· Human Rights in India

Fundamental rights under the Indian Constitution and the international humanitarian law contain similar principles and values. Developments in international law have paved way to various human rights legislations in India. A greater role is being played by the judiciary in developing human rights jurisprudence in India based on international principles. As highlighted earlier under the section “Indian Constitution and International Law", the Fundamental Rights and Directive Principles in the Constitution echo international human rights principle. Special legislations and provisions like the Child Labor (Prohibition and Regulation) Act, 1986, the Mental Health Act 1987, the Human Rights Act, 1993, the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the Right of Children to Free and Compulsory Education Act (or the Right to Education Act), 2009 have also been enacted to ameliorate the marginalized sections of the society. The Indian judiciary has broadly interpreted the scope of the fundamental rights to best further the objectives of human rights. It has relied upon various international norms and principles in order to recognize and enforce various rights.

· Environmental Law and Jurisprudence

The steep rise in global temperature and the growing realization that natural resources – living and nonliving – are finite created a global concern for the protection and conservation of environment. To address this concern, the world met at Stockholm in 1972 in what has come to be known as the First Earth Summit. India was an active participant at this Conference and since then is committed to the cause of environmental conservation. At the same time, she is also the champion of the developmental aspirations of the developing nations.

· International Conferences and environmental law in India

Subsequent to the Stockholm Conference and in order to give impetus environmental preservation, India enacted the Water (Prevention and Control of Pollution) Act 1974, the Air (Prevention and Control of Pollution) Act 1981, and the Environment (Protection) Act 1986. These legislations along with other laws, like the Forest Act, 1927, the Prevention of Cruelty to Animals Act, 1960, the Wildlife (Protection) Act, 1972, Forest (Conservation) Act, 1980, the Public Liability Insurance Act, 1991, the National Environment Tribunal Act, 1995, the National Environment Appellate Tribunal Act, 1997 and the Biological Diversity Act, 2002 form the corpus of environmental law in India.

· Trade Law

International trade is the cross-border exchanges between subjects of international trade law. In order to institutionalize international trade regulations, International Trade Organization (ITO) was sought to be established. A wide variety of laws and amendments were brought in subsequent the establishment of WTO. The major acts are the Foreign Trade (Development and Regulation) Act, 1992, the Special Economic Zones Act, 2005, the Special Economic Zones Rules, 2006, the Agriculture and Processed Food Products Export Development Authority Act, 1985, the Marine Products Export Development Authority Act, 1972, the Competition Act, 2002, and the range of amendments to the Tea Act 1953, the Coffee Act, 1942, the Rubber Act, 1947 and IPR laws in India and the opening of the Indian service sectors to foreign players.

· Intellectual Property Rights

The intellectual property rights (IPR) system in India is based on the developments in international law. India is a member of the World Intellectual Property Organization (WIPO), and party to the World Trade Organization (WTO) managed Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement). Therefore, India has brought its domestic law in harmony with the international IPR regime. The legislations in this regard include the Patent Act, 1970, the Copyright Act, 1957, the Trade Marks Act, 1999, the Geographical Indications of Goods (Registration and Protection) Act, 1999, and the Design Act, 2000.

· Alternative Dispute Resolution

India enacted the Arbitration and Conciliation Act, 1996 in order to bring uniform rules regarding settling commercial disputes based on the Model Law on International Commercial Arbitration, 1985 and the Conciliation Rules, 1980 adopted by the United Nations Commission on International Trade Law. Amendments to the Code of Civil Procedure, 1908 were also made.

· Space Law

The launch of Sputnik 1 by the erstwhile USSR (Soviet Union) on 4th October, 1957 marked the beginning of the space era and since then this field has seen tremendous progress. Law responded to this “revolution" immediately. In 1959 the United Nations Committee on Peaceful Uses of Outer Space (UNCOPUOS) was established in order to create a specialized agency for dealing with peaceful use of outer space and promote international co-operation. UNCOPUOS has two standing subcommittees: the Scientific and Technical Subcommittee and the Legal Subcommittee. India has played a pioneering role in the development of international space law. India is one of the founder-members of the UNCOPUOS. It has participated in all conference on space law and has been an active participant. India is also a leader in space technology and this gives great weight to her contribution to law-making.

· Cyber Law

Cyber law in is India governed by the Information Technology Act, 2000. This legislation was enacted subsequent to the UNCITRAL Model Law on Electronic Commerce (E-Commerce). The various legislations passed in this regards include the Information Technology Act, 2000 and amendments to Evidence Act, 1872.

In India, SC has held in several cases such as Vishakha vs State of Rajasthan, Randhir vs Union of India, Unnikrishnan vs State of Karnataka that domestic laws of India, including the constitution are not to be read as derogatory to International law. An effort must be made to read the domestic law as being in harmony with the international law in case of any ambiguity. At the same time, the constitution is still the supreme law of the land and in case of any directly conflict the constitution will prevail.

To sum up the basic object as to research paper Indian constitution embodies the basic framework for the implementation of international treaty obligations undertaken by India under its domestic legal system. According to this, the Government of India has exclusive power to conclude and implement international treaties or agreements. This is because Indian constitution follows the „dualistic‟ theory with respect to incorporation of international law into municipal law. International treaties do not automatically become part of national law in India. They must be incorporated into the legal system by an act of Parliament, which has the legislative powers to enact laws to implement India’s obligations under the international treaty.




[1] AIR 1997 SC 3011


[2] (1973) Supp. SCR 1


[3] AIR 1996 SC 2715

675 views0 comments

Recent Posts

See All
  • Kithandkinattorneys
  • Kithandkinattorneys
  • Kithandkinattorneys

All content © 2019, Kith & kin. All rights reserved.