Received: 20.05.2021 Revision: 30.05.2021 Accepted: 10.06.2021 Published: 20.06.2021
Dr. Varun Chhachhar1 and Niharika2
1Coordinator, Dr. Shankar Dayal Sharma Institute of Democracy & Assistant Professor, Faculty of Law, University of Lucknow, India
2Assistant Professor, Faculty of Law, University of Lucknow & pursuing PhD from Faculty of Law, University of Lucknow, India
Abstract: The present paper studies the manner in which International Law becomes part of the National Law. It discusses various approaches concerning relationship between the two legal systems and tries to find out which of them reflects dominantly in the state practice. Moreover, this paper investigates into the Indian practice of International law and inquires whether it follows the monist or the dualist approach for making international law part of its domestic legal system. The paper discusses the Indian legal framework and ascertains its requirements for reception of international law at domestic level. It makes inquiries into Indian Constitutional scheme and judicial pronouncements to assess the process of transplantation of international treaty and customary norms into Indian legal system. It seeks explanation whether India has different mandates for implementation of treaties and customary laws as well as for resolutions and soft laws. Paper also explains the manner of implementation of informal agreements between the governments as well as between their agencies and institutions. It studies the treaty making prerogatives and requirements for implementation of International Law in India such as whether it is always automatic or needs parliamentary ratification etc. Paper also tries to explore the role of legislative intention and its interpretations by the courts in making international law a part of municipal law. The paper analyses the role of higher judiciary in giving effect to international law at domestic level and whether it can be used to enlarge the meaning and content of domestic laws.
The real understanding of the application of international law in the municipal sphere in India can be achieved from the interpretations of the courts in its various decisions. India’s approach to international law can be examined from two perspectives:
Indian law towards treaties.
Indian law towards international customs.
India follows the dualist theory of international law. Therefore, the principles and rules of international law cannot be invoked in municipal courts without being expressly incorporated into national law.
Courts held that in the light of the provisions of Article 51, the treaties of which India is an absent party should be implemented in good faith, but at the same time, the executive cannot be directed to follow the treaty in absence of national law. However, the treaties are paradoxically considered to be self-enforceable, i.e., they apply automatically in the municipal sphere, except in cases where an amendment to the Constitution or existing law is required, or when the enactment of a new law is required. Therefore, courts can rely on treaty principles that do not conflict with the provisions of the laws of India.
Customary international law, on the other hand, is not automatically considered part of municipal law. Therefore, in the event of a conflict between municipal law and customary international law, the former will prevail. However, the courts have played an active role in the implementation of India’s international obligations and have taken knowledge of both the Treaty and the customary principles of international law in cases involving human rights violations or environmental law issues. Although Article 51 requires compliance with international law, it is not an executive article. Article 253 confers on Parliament exclusive power in matters of international affairs. But the Constitution does not contain explicit provisions regulating the relations and status of international law in Indian courts. This “silence” gave the courts the flexibility to implement international law in a progressive and measured way.
MUNICIPAL LAW VIS-A-VIS INTERNATIONAL LAW
The position regarding the different nature of national and international law is well-established. While municipal law operates within a country and regulates the domestic aspects of a country and primarily addresses the issues between individuals, international law operates outside and between the States, international organizations and in certain cases, individuals. The international law varies from municipal law in a variety of ways such as the legislature, executive, judiciary, and the subjects that it governs. It therefore appears that these two legal systems operate in separate, independent, and demarcated territories but it is in fact the contrary. The interdependency of States and the close connection between contemporary international commercial and political society is such that any action of a particular State has potential to severally impact the system as a whole and affect the decisions under consideration by other States. Consequently, it has resulted into interpenetration of domestic and international law in several fields such as environmental law, human rights, investment law, where same issue is subject to regulation both at international and domestic level. This situation further raises questions as to the role of State within international system, and relation between municipal law and rules governing the international community.1
Although the two legal systems operate in different domains, there are certain instances which create problems and cause difficulties between the two systems. Such as, a rule of international law might be brought as a defence before a municipal court as happened in the case of R v. Jones2, where a charge of criminal damage under English Law was defended with an argument of preventing a greater crime (crime of aggression under international law). Further, there are cases where national courts and international courts refer to each other’s decisions, such as failure to allow access to consular assistance to imprisoned foreign nationals by the USA was in violation of the Vienna Convention on Consular relations, 1963 and was subject of case- law before the International Court of Justice, Inter-American Court of Human Rights and US Courts.3 Generally, a State cannot defend breach of an international obligation by citing its domestic legal situation. The reason for discouraging argument of internal rules for evading international responsibility is to prevent evasion of international law by a simple domestic legislation in similar situations. Article 3 of the International Law Commission’s Articles on State Responsibility emphasize on this by saying that classifying an act of State as internationally wrong is the domain of international law and it remains unaffected by characterization of the same act as lawful by internal law4. Article 27 of the Vienna Convention on the Law of Treaties, 1969 also says that as far as treaties are concerned, a party cannot justify its failure to perform an international obligation by citing its internal law.5 Article 46 of the Convention highlights another important point and prevents a State from raising the fact that its consent to be bound by a treaty was in violation of a provision of its internal law regarding capability to conclude treaties as nullifying its consent subject to certain conditions.
In the Alabama Claims arbitration of 18726, it was held that the absence of British legislation for construction or departure of the vessel could not be brought forward as a defence and it was made liable to pay damages to the US for the depredations caused by the warships. The case relates to the attacks by Confederate Navy commerce raiders built in British shipyards upon Union merchant ships during the American Civil War. In the Polish Nationals in Danzig territory case7 also, the Court laid down a similar view and declared that a State cannot cite its own Constitution as against another State for the purpose of evading its obligations pursuant to international law or treaties. Same approach has been followed in several cases such as the Lockerbie case and LaGrand case. A contrasting approach was found in Electronica Sicula S.p.A (ELSI) case8 where International Court pointed out that the fact that an act of a public authority may have been unlawful under the municipal law does not necessarily mean that it would be unlawful under international law too.
These cases express the supremacy of international law over municipal law in international tribunals, but it does not mean that domestic legislations are unnecessary. The examination of municipal law play an important role in ascertaining a State’s legal position on a variety of issues relevant to international law.9 A State’s domestic law highlights its opinion on different matters like for example, territorial sea, its jurisdiction and acquisition of nationality. Several cases before international court might require study of relevant pieces of municipal legislations but it must be done with caution in the absence of an express or implied requirement to do so and automatic transposition should be avoided.10 Other than uncovering the legal position of a State on matters of international importance, the municipal law rules also constitute facts in proceeding before the international courts and tribunals which may also be used as evidence of compliance and non-compliance with the international obligations. Further, an international law cannot declare invalid any rule of municipal law and will rarely interpret it in a manner contrary to the municipal authorities.11
The position is thus clear that States are under a general obligation to act in conformity to the international obligations and will be responsible for any breach of it, irrespective of which organ of State commits it. International treaties may require States to enact domestic legislations and Security Council resolutions may require them to take certain action internally. On the other hand, domestic courts may often have to interpret certain rules of international law that is relevant to the case at hand or resolve certain conflicts between international rules. This interpenetration has led to blurring of well-maintained autonomous zones between the two systems. The present situation will be discussed later in the article.
MONISM v. DUALISM
The theories which talk about the relationship between international law and municipal law were monism and dualism. Positivists such as Triepel12 and Strupp have considered the relationship between the municipal and international law on the basis of supremacy of the State and the broad differences between the two legal orders. This is supplemented by the assertion that the sovereignty of States is clearly provided for in Article 2(4) and (7) of the United Nations Charter.13 Dualism stresses that international law and municipal law rules exist in separate domains and cannot purport to influence the other.14 The reason behind this is the different nature of inter-state and intra-state relations and the legal structure adopted by the State on one hand and between the States on the other is also different.
Further, as per this theory, the incorporation of international law into the domestic legal order is not automatic. Since these two legal orders are separate, the incorporation of international law can only be done through domestic law-making process.
Dualism requires sanctioning of international law by domestic legal process before it can have any impact on domestic legal order. As per dualist approach, there can never be a conflict between the international law and municipal law, and even if there is one then municipal law will prevail because international law is given effect to operate domestically only by municipal law.
In contrast to the above, writers such as Lauterpacht and Kelsen have disagreed with dualism. They supported monist approach which accepts a unitary view of law as a whole and do not support strict division put forward by the positivists. This theory envisages that international and municipal legal orders are normatively interconnected and are part of the same legal order. Further, as per monism the incorporation of international law into domestic legal order is ought to be automatic without any additional act of adoption or transformation by the State. Once it is incorporated, it becomes part of the domestic legal order and is applied accordingly within that jurisdiction, even by the judiciary. The monist approach of asserting the interrelation between the two legal orders is based upon the understanding that the recognition mandatory for the authority of municipal law over a given subject or territory is in fact provided by international law. Lauterpacht’s work15 is centred on the premise that the main function of all law is to see the well-being of individuals and advocates that the best way to achieve this is the supremacy of international law. This approach doubts that international legal system is based upon sovereignty and absolute independence of States and believes that the rules of international law are capable of infusing the international legal order with a sense of moral purpose and justice which is founded upon respect for human rights and individual welfare. Kelsen’s theory of monism is different and he stresses on the unity of entire legal order on the basis of supremacy of international law by declaring it as the basic norm of the international legal order which is the ultimate reason for validity of national legal orders too.16
The relevance of the above two doctrines has become doubtful in the light of their inability to solve legal issues in recent times. The war of superiority between the two legal orders remains elusive in the theoretical framework. But, in practice the States have prescribed in their Constitutions the procedure to incorporate international law into their domestic legal orders. While some States give primacy to international law such as civil law jurisdictions, the Commonwealth States adopting the common law, on the other hand follow a strict dualist approach.
There is one more approach in this direction which was formulated by Fitzmaurice and Rousseau which is somewhat a modification of the dualist approach and is labelled as the theory of Coordination. This approach does not accept that there is any common field of operation between the international law and municipal law by which one system is superior or inferior to the other. It asserts that each legal order is supreme in its domain and they both are legal element contained within the domestic and international systems respectively and exist within different juridical orders. There might be situations where conflict of obligations occurs, and a State does not comply with its international obligation within its own domestic sphere. In such a scenario, the domestic position remains unaffected, but the State has violated a rule of international law and therefore the remedy will lie in the international field. Due to the increasing scope of international law, States have been tilted in accepting some sort of an intermediate position, where the rules of international law are considered as part of a distinct system but are capable of being applied internally on certain circumstances.
The concept of monism was developed from the early teachings of natural law theory propounded by various naturalists in their works such as Aristotle in his Nicomachean Ethics, Thomas Aquinas in his Summa Theologica, Cicero in De Re Publica, Justinian Institutes and Saint Augustine. The scholars of natural law believed that natural law is universal and eternal and applies universally and is in accordance with reason.17 This doctrine influenced writings of Francisco Suarez and Vitoria which essentially marked the theoretical foundation of monism. Later, Hugo Grotius in his writings noted that the law of Nations is universally binding, and he did not make any distinction between international and municipal law. This view was later followed by Jean Bodin and modern authors like Lauterpacht, Kelsen and Duguit as pointed out above. The States which follow monism, incorporate international law as per the procedure prescribed in their Constitution. Few examples of monist States include Austria, France, Switzerland, Japan, Germany, and Denmark. The supporters of monist doctrine postulate that international law is superior to municipal law, Constitution does not create any bar towards application of international law in municipal courts and finally, all organs of government are enjoined to consciously implement rules of international law within the State. The procedure prescribed for reception of international law can be understood by examining the position of few States.
In Switzerland, the Federal Council headed by the President and the Federal Chancellor exercise the executive authority. The Federal Council is empowered to negotiate and sign treaties. The signed treaty is then ratified in four different manners, which is: a) In certain cases, Parliament gives authority to the Federal Council in advance to sign the treaty and bring it into force as well, b) Some treaties require prior approval of the Parliament to be enforceable, c) In some cases, the treaty is subjected to optional referendum provided under Article 89 (3) of the Constitution, d) In some cases, the international agreement has to be sanctioned by compulsory referendum as per Article 89 (5) of the Constitution.18 Appropriate process is followed as per the nature of the treaty.
Article 52 of the French Constitution of 195819 empowers the President to negotiate and ratify treaties. The ratification of treaty is authorized by the National Assembly and Senate when that treaty would affect the sovereignty of France or alter an existing Statute, though such authorization has no normative value. A treaty affecting the rights of the citizens is required to be published for it to prevail over French legislation. Moreover, Article 55 accords a superior status to international treaties over the domestic legislation and provides that concluded treaties do not require any implementing legislation to be enforceable.
The origin of dualism on the other hand can be traced in the writings of legal positivists like Herder, Montesquieu, Hume, Ferguson and Milla. Legal positivism believes that law derives its binding effect from the sovereign. Dualism further gained momentum by the writings of Emmerich de Vattel and Hegel where they stated that sovereign is free to determine the obligation that will bind it and that State has its own will and power to elect whether to be bound by law or not. Hegel’s theory affected Albert Zorn who saw international law as ‘external State law’. Later, Austin also stated that international law is not a law. Bentham also stressed upon the supremacy of municipal law and then later on monism was replaced by dualism in the 19th century in Europe. Colonialism led to the introduction of dualism in most of the post-colonial states of commonwealth. Dualism requires incorporation of international customs, treaties, conventions in the domestic legal order. International law recognizes dualism by virtue of different international and regional court decisions upholding certain principles of extradition, exhaustion of local remedies and immunity of Heads of States.
The dualist States implement customary international law and treaties within their domestic territory in pursuance to the established constitutional mechanism. These customary rules are recognized and applied by the municipal courts only when they are not contrary to the existing legislations or decisions of the apex court. The legal position in countries like Canada, Nigeria, Ireland is that the international law must be given legislative effect domestically. As far as treaties are concerned, the position is established with reference to the dualist States that treaties must be signed and ratified for giving domestic effect to its operation within the domestic jurisdiction. The process of incorporation of treaties in some countries can be examined in this light.
Article II Section 2 of the Constitution of USA20 gives power to the President to enter into an international agreement which can later be signed into law by prior approval of the Senate. These treaties are deemed equivalent to the federal laws and superior to State laws as per Article VI of the Constitution of USA. But in case of a conflict between an Act of Congress and a Treaty, the former shall prevail. There is a difference between treaties and agreements in USA. While treaties require Senate approval/ratification, the agreements (known as executive agreements) are entered into and signed by the President by virtue of his executive power.
There is no specific provision regarding external affairs in the Canadian Constitution Act, 1982 (British North American Act 1867). But Canada follows the British practice21 and gives exclusive power to the Federal Government for entering into treaties on its behalf. Under the Canadian Constitution even the Provinces are empowered to enter into international agreements, which is believed to be not binding in international law. Generally, the Government seeks parliamentary approval before ratifying a vital treaty but there is no constitutional obligation as such. Approval is given by both the houses of Federal Legislature in the form of resolution. Further, if a legislation is required to implement a treaty then it can be enacted only by the provinces so that they are consulted before concluding a treaty. With regard to customary international law, its practice is similar to USA and England.
A brief look at the practice of India in context to international law would be appropriate here. The entitlement of international law in the municipal sphere in India can be understood through the interpretations by the courts in its various decisions. India’s approach to international law can be looked at from two perspectives – Indian law vis-a-vis treaties and Indian law vis-a-vis international customs. India follows the dualist theory of international law. Therefore, international law principles and norms cannot be invoked in municipal courts without being expressly incorporated into the domestic law. The courts have held that in the light of the constitutional provisions22 treaties to which India is an affirmative party should be implemented in good faith, but at the same time, the executive cannot be directed to follow the treaty in absence of a domestic law.23 However, paradoxically treaties are considered self-executing, that is, they apply in the municipal sphere automatically, except where it requires an amendment to the Constitution or an existing law, or where a new law is required to be enacted.24 Therefore, the Courts can take aid of the treaty principles not inconsistent with the provisions of laws of India. Customary international law, on the other hand, is not considered to become part of municipal law automatically. Therefore, where there is a conflict between municipal law and customary international law, the former will prevail. Nevertheless, the courts have played an active role in the implementation of India’s international obligations and have taken cognizance of both treaty as well as customary principles of international law in cases involving violations of human rights or questions of environmental law. Although Article 51 mandates respect for international law, it is not an enforceable Article. Article 25325 confers exclusive power on the Parliament with respect to international affairs. But the Constitution contains no express provision settling the relation and status of international law in Indian courts. This “silence” has given the flexibility to courts to implement international law in a progressive and measured manner.
The ties of India’s Constitution with international law date back to the pre-independence days. Even during the British rule, India was the separate member of the League of Nations. It is also the founding-member of the United Nations.
The Preamble contains certain basic values and philosophies that India guarantees to its citizens and strives to achieve as a nation. The Preamble states inter alia that social, economic and political justice will be secured for all citizens and that liberty and equality will be promoted. These values are the cornerstone of true democracy and are universal in nature. Every nation strives to achieve them.
(b) FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLE OF STATE POLICY
The Fundamental Rights in Part III and the positive mandates to the State in the form of Directive Principles in Part IV can be compared with the Universal Declaration of Human Rights (UDHR) and commonalities can be traced. Shri Subhash C Kashyap26 has prepared a detailed chart on the common principles in these two parts as well as certain other laws of India. The developments at the international level through the centuries had a great influence on the rights treatise in the world. The United Nations Organisation (UNO) was founded as an international agency to prevent the contravention of the third world war, uphold international peace and security and to promote human rights. With this objective in mind, nations came together and adopted and proclaimed the Universal Declaration of Human Rights on 10th December 1948. It should be noted that the Indian Constitution which was adopted on 26th November 1950 was greatly influence by the history of the human race and the values the Universal Declaration of Human Rights sought to promote and preserve.
Article 51A gives effect to the declaration in Article 29(1)27, which emphasises the duties owed by individuals to the community at large. These duties benefit community and also help in the full development of the individual.
(d)INTERNATIONAL PEACE AND SECURITY AND INTERNATIONAL RELATION
Indian Constitution is one of the few constitutional texts in the world which specifically provides for development of international relations. Article 5128 commands the State to endeavour to encourage international peace and security, to keep good relations with other nations, to admire international law and to settle international dispute by peaceful means. The declaration proclaims the ‘undaunted faith’ of the parties in international co-operation and promotes international peace and security.
Clause (c) of this Article necessitates India to respect international law. A combined reading of this with Part III of the Constitution enabled the judiciary in developing human rights and environmental jurisprudence in India. Clause (d) of the Article provides for ‘settlement of international disputes by arbitration’. The understanding of using the term arbitration is distrusted. Most countries do not prefer arbitration to other means and in fact the practice of various States shows that arbitration is not the first choice of different nations. India too has not preferred arbitration as the first means to settle international disputes. The UN Charter too suggests various means like conciliation, enquiry, mediation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means. In these circumstances, it is obvious that the use of the term arbitration is misplaced.
(e)POWER OF THE EXECUTIVE IN MATTERS OF INTERNATIONAL LAW AND RELATION
By virtue of the Indian Constitution29, the powers of the Government of India extend to matters in respect of which of the Parliament has the power to make laws, subject to constitutional provisions or any law made either the parliament on that behalf. In Constitution30, the Parliament can enact laws to implement international obligations, notwithstanding the constitutional distribution of powers. So far, in India, there is no legislation that limits the power the executive in matters of international law and relations. Hence, we can state that the executive has extensive powers in this regard.
The power of the executive is vested in the President of India and is exercised by directly or through officer’s subordinate to him. All contracts entered into by India should be made in the name of the President. The President, in the exercise of her powers should act according to the advice of the Council of Ministers. All executive actions are taken in the name of the President of India.
(f)TREATY MAKING POWER
As mentioned above, (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend-
to the matters with respect to which Parliament has power to make laws; and
to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:
Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.31
Article 51 obligates respect for international treaties. Article 253 confers powers on the Parliament to make laws to implement international agreements. Here we have to draw a distinction between formation of treaty and adoption of that into domestic legal system. Making laws is the exclusive domain of the legislature. Therefore, generally, ratification (approval) by the legislature is necessary to make the treaty binding on the State. Whereas, the executive is the agency of the State, that can incur legal obligations on the State’s behalf. But, as already explained, there are no fetters on the executive’s power in respect of international law. Therefore, the Union of India v. Manmull Jain, AIR 1954 Cal 615 held that international law forms part of municipal law except when they are inconsistent with the provisions of municipal law. To sum up, the current position in India is that approval of the Parliament is required only for treaties that affect the rights of the citizens or which require a new, or change in an existing, municipal law.
(g)CAPACITY TO MAINTAIN SUITS
The Constitution of India 32 provides that the Government of India may sue or be sued by the name of the Union of India or may be sued in the name of the State.
The Government of India, as per Article 260, can enter into an agreement with any other foreign jurisdiction to undertake legislative, executive or judicial functions in such territory.
(i)THE POWER OF THE PARLIAMENT
The power of enacting is divided by regional extent and ability over subject matter. The Parliament can make laws for the whole of India on subjects specified in List I of Schedule VII, and the legislature of the any State can make laws applicable within the territory of that State over the subjects contained in List II. List III is designated as Concurrent List over which the Parliament as well as the legislature of the States can exercise jurisdiction, subject to the overall power of the Parliament. Article 253 confers exclusive power on the Parliament to enact laws to implement international agreements.
The Article reads as under:
“Legislation for giving effect to international agreements – Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power 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 conference, association or other body.”
This power dominates even the other provisions in Chapter 1 of Part XI of the Constitution which deals with the circulation of powers between the Union and the States, as explained above. The provisions of Article 253, therefore, gives power to the Parliament to enact laws on matters listed in List II of Schedule VII, in order to implement international treaties, agreements, conventions or decisions taken international conference, association or other body. Hence, the power of the Parliament on matters of international law can be stated to be plenary. Further, the residuary power of legislating is also with the Parliament. This enables the Parliament to legislate on matters not listed in Schedule VII.
The Parliament also possesses the power to admit foreign territories into the Union by way of a law 33. But, if territory of India has to be ceded, a constitutional amendment34 will be required, as the Constitution does not specifically empower the Parliament to do so.
Article 51(c) of the Constitution of India provides that the State shall strive to ‘foster respect for international law and treaty obligations.’ But this requirement on the part of State cannot be enforced as it falls under Part IV of the Constitution which has been held to be non-justiciable. The non-obligatory nature of this provision indicates it to be guide to India’s foreign policy rather than to provide how India should deal with its International law commitments domestically. Article 246 read with entries 10-14 of the Union List provided under Seventh Schedule, provides that law making power over foreign affairs, entering into treaties with foreign nations and then implementing them at domestic level, lies with the Parliament. Further, Entry 13 of List I, extends power to Parliament over subject of participation in international conferences, associations and implementation of decisions arrived therein. Article 253 empowers Parliament to make law for implementation of treaties, conventions and agreements entered into with any country or countries.35
Since Parliament has the legislative competence over entering into treaties and implementing them domestically, it also has the power to define the manner in which international obligations are ought to be assumed and when and how they should be implemented. But till date no such legislation has been passed by Parliament. In this backdrop, India follows the British practice which finds place under Article 73 of the Indian Constitution as well. Article 73 broadens the ambit of Union executive’s power and extends it to matters on which Parliament has authority to make laws. So, a combined reading of Article 246, entries 10-14 of the Union List and Article 73 reflect two things, first, that Parliament is empowered to pass law for regulating the manner in which international obligations are assumed at international level, and then implemented and enforced domestically. Second, in case there is no legislation then such power to enter into treaties will fall upon the executive.
Moreover, there is no Constitutional provision or statutory law which necessitates executive to get pre-ratification approval of the Parliament while assuming international obligations. But, if the implementation of treaties at municipal level involve modification in the existing domestic legislation then Parliamentary legislation will be required.36 The position therefore is that there is no automatic application of treaty law at domestic level in India, but it requires transformation and adoption by domestic legislation. This approach is similar to the one followed by UK, Canada and Australia. The power of the executive and legislature with reference to international obligations is best explained in the case of Attorney General for Canada v. Attorney General for Ontario37. It was held that there is a distinction between formation of obligations constituted by a treaty on one hand and performance of it on the other. In British empire, the established rule is that making of a treaty is the domain of executive while performing its obligations, if it constitutes any change in the existing legislation, is the domain of the legislature. The stipulations of a duly ratified treaty do not itself has the force of law. If the executive enters into any treaty which might involve modification of law, then consent of Parliament has to be obtained. It has been affirmed by the hon’ble Supreme Court of India as well.38 With reference to rules of customary international law, the position is that they are deemed to be directly incorporated in the municipal law if they are not contrary to it.39 Therefore, the general position appears that while India requires legislative transformation of treaty obligations, it directly incorporates rules of customary international law.
The real position, however, is that executive’s involvement in incorporating an international obligation into municipal law without express parliamentary approval is incredibly significant. There have been instances where Parliament gave power to the executive to modify the application of domestic law in order to give effect to an international obligation that may arise in the future. Extradition Act, 1962 and Income Tax Act, 1961 are few examples where executive has permission to modify the application of these Acts for giving effect to extradition treaties and double taxation avoidance agreements respectively, when executive enters into such treaties in the future. When wide discretion is granted to the executive, it becomes more powerful in incorporating an international obligation with minimum or no interference of the Parliament. Such as the Environment (Protection) Act, 1986 empowers Central Government for taking necessary measures for protecting environment and controlling environmental pollution. It also has the power to promulgate rules under the Act for the same. The Government has exercised this right for making rules and often for incorporating international conventions into municipal law. These Acts do not require Parliamentary approval for exercising the discretion or for making the rules. Section 35 of the Extradition Act, 1962 and Section 26 of the Environment (Protection) Act, 1986 require the notified order/notification issued and the rules made, respectively, to be laid before the Parliament. Affirmative Parliamentary approval is not required, and it can only modify or revoke the rules ex-post.
In cases where affirmative parliamentary approval is required, there also, there is no requirement for approval of parliament before the ratification of international treaties or conventions. So, the treaties which are both vital and have long-term impact are ratified without prior approval of Parliament, by the executive alone. The Parliament if ultimately does not enact a legislation as per the treaty, the State might still be subject to international liability. The ex-post parliamentary check over the executive turns out to be unsatisfactory. The dualist approach leaves less scope for public scrutiny and debate on the assumption of international liability. Anyway, after the international obligations are assumed, it enters into the domestic legal order, one way or the other with minimal or no parliamentary control. These concerns have been raised in the past by the Parliamentary committee, like when India signed and ratified the TRIPS and the committee advised that it will significantly impact the India’s patent regime. But these suggestions were disregarded because prior Parliamentary approval is not the norm.40 Similar events took place when India signed the Civil Nuclear Deal with the United States and no Parliamentary approval was sought despite unfavourable terms of the deal. This invited a call for Constitutional amendment and court cases in this direction but did not result in anything fruitful.
Further, the States are not consulted or involved in the process of negotiating, signing, and ratifying the treaty obligations. Additionally, as per Article 253 of the Constitution of India, once an international obligation is assumed, the law-making power over that matter vests with the Parliament, even though the subject matter might otherwise fall within the competence of States. This swings power from the States towards the Centre and affects the federal distribution of powers. This transference of competence over a matter from the States towards the Centre has been witnessed in environmental law legislations, Lokpal Bill, where, in the preamble of these legislations a reference of the international conventions is made and then it is enacted under Article 253.
The approach of courts in dealing with the matters regarding executive’s treaty making power, has been in favour of the executive thereby giving it wide powers for entering into and ratifying the treaties. Such power is exercised without prior approval of the Parliament with only Constitutional constraints as the limitation. The basis of court’s such approach is that a treaty has domestic effect only after parliamentary sanction but then as seen above, many international obligations become part of municipal law without any Parliamentary inspection. The courts have therefore resorted to the doctrine of dualism for justifying the wide treaty making power of the executive and the way power has been allocated in this reference between the parliament and the executive.
TREATY MAKING FORMALITIES FOLLOWED BY INDIA
While the Ministry of External Affairs (MEA) looks after the activities related to international treaty, the administrative ministry is the nodal agency responsible for preparation of drafts, consultations, and negotiations. The procedure followed in case of bilateral treaties is that the concerned administrative ministry prepares the draft of treaty after consultation with other stake holders. It is then sent to the Legal and Treaties Division (L & T Division) of the MEA with the approval of the concerned Minister. The treaty is vetted by the aforesaid Division and is then sent to the other country for consideration, through diplomatic channels. It is desirable that in all cases except security related matters, modern means of communication are adopted such as emails, teleconference, and video conferencing. Multilateral treaties on the other hand are negotiated in international conferences.41
Once the text of treaty is negotiated and finalized, it is moved by the administrative ministry for concerned minister’s approval and after that External Affairs Minister’s approval is procured. Thereafter, the administrative ministry moves the Cabinet Note for its approval. The Second Schedule to the Government of India (Transaction of Business) Rules, 1961 mandates Cabinet’s approval for all treaties (including conventions, MoUs, MoAs, agreements, protocols, etc.) to be signed with any foreign country or agency.42 Such rules have wide applicability43, but it does not apply to:
Cultural Agreements and Agreements on Science and technology which does not affect the national security or India’s relations with other countries and are duly approved by the Minister-in-charge of the concerned department, and
Foreign Aid Agreements and Commercial Agreements as are approved by the Minister-in-charge of the Concerned department.
The proposal for seeking Cabinet’s approval must always be sent well in advance to the Cabinet Secretariate. The proposals under the Rule 12 of the Government of India (Transaction of Business) Rules, 1961 must be sent only in case of urgency and unanticipated contingency.44 The instruments sent by the Ministries/ Departments under the title of ‘MoU’ must be accompanied with the rationale for the same. A list of existing MoUs along with their status must also be enclosed while seeking approval for new MoUs.
After obtaining necessary approvals, the text of the treaty and agreement is formally signed and concluded with the foreign government. The concerned administrative ministry in consultation with the MEA, designates a person for signing the treaty on behalf of Government of India. Such designated person requires full powers from the President of India for authorizing him to sign. For obtaining Full Powers of the President, the concerned administrative ministry provides the name, title, and position of the designated person to be named in the Instrument of Full powers, along with the full text of the treaty, Cabinet Note and Cabinet Approval to the L & T Division. The division then processes the details and prepares the Instrument for obtaining President’s signature for the same. As per international law and practice, certain authorities such as the President, Prime Minister and the External Affairs Minister do not require Full Powers to be able to sign the treaty. Ambassadors or High Commissioners on the other hand require Full Powers if designated to sign the treaty formally. Such powers are not required if treaty is being signed in the presence of President or Prime Minister of India.
If the treaty does not provide for its automatic operation upon signing it, it means that it will come into force only upon ratification. In such a scenario, the treaty is ratified by obtaining the Instrument of Ratification under the signature and seal of the President of India. Multilateral treaties always require ratification before they can be enforced. In India, for ensuring effective discharge of obligations under treaties/international agreements, it is required that ratification/accession should take place only after appropriate changes are made in the municipal law. If there is no municipal law on the subject, ratification should take place only after an enabling legislation has been passed. This process should be specifically mentioned in the proposal for entering into such treaties/ international agreements.45 The instrument of ratification is prepared by the L & T Division of MEA which is then processed for President’s signature. The bilateral treaties become effective on exchange of instrument of ratification or through notification effected through diplomatic channels. In case of multilateral treaties, however, the instrument of ratification is deposited with the depository to the treaty. The concerned States may agree to a specific number of ratifications required for bringing the treaty into force.
There are scenarios when some States fail to sign the treaty during the period when it was open for signature. In such cases, these States may still become part of the treaty through accession. Many multilateral treaties provide for accession, where States may accede to the treaty without having signed it. The Instrument of Accession is also prepared by the L & T Division of MEA which is signed by the President and is then deposited in the depository of the Treaty.
Treaties can also be amended at any time by the mutual written consent of all the parties. Any State may propose an amendment which may be approved or rejected in whole or parts by the concerned parties. The amendments may be enforced either through the same procedure as applicable to the treaties or a different one. The bilateral agreements/ MoUs contain clause for periodical review of the activities undertaken by them. The Concerned ministry reviews and sends the report to the concerned territorial division of MEA at the end of every year. They update on the implementation of the treaties and on their status. If the treaty is expired then whether it requires renewal or not, it is also communicated.
ROLE OF JUDICIARY
In India, though the polity is dual, the judiciary is integrated. Therefore, India has an integrated judicial system.46 Supreme Court of India is at the top of the institutional framework, 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.
Judiciary has further broadened the ambit of its role. Higher Judiciary has fashioned a broad strategy 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).47
In relation to Article 51, Sikri, C.J. in Kesavananda Bharathi vs. State of Kerala,48 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 Supreme Court in Vishakha v. State of Rajasthan took recourse to International Convention for the purpose of construction of domestic law.49 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 workplaces, 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.”
In Jolly George Varghese and Another v. The Bank of Cochin,50 the Court first attempted to deal with the emerging linkages between domestic law and human rights by reconciling Article 11 of the International Covenant on Civil and Political Rights (ICCPR) with Contractual provisions under municipal law to protect human rights of the civil debtor whose personal liberty was at stake due to judicial process under Section 51 (Proviso) and Order 21, Rule 37, Civil Procedure Code.
In Additional District Magistrate, Jabalpur v. Shivakant Shukla,51 the Supreme Court amplified the scope of Article 21 (right to life) of the Indian constitution by referring to Articles 8 and 9 of the Universal Declaration of Human Rights (UDHR). The Court in Vellore Citizens Welfare Forum v. Union of India and Others,52 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.”
It shows that as per convention indicates that the higher judiciary is playing an active role in the implementation of India’s international obligations.
International Legal norms are not directly enforceable in Indian courts till there is domestic legislation giving effect to these norms. In practice, however courts have adopted what has been described as creeping monism’, where international legal norms are internalized into domestic law. This blurs the boundaries between dualism and monism and raises several conceptual, questions. The WTO Solar Panel case demonstrates this quite well. In view of this, it is critical for India’s apex court to demonstrate greater rigor in approaching international law and in explaining its relationship with domestic law.
Definitive codified provisions on accepting or rejecting the supremacy of international law are regularly complemented by the decisions of domestic courts that may claim to have the last word on the question of supremacy, thereby challenging the performance of international obligations in contravention to particular municipal legal norms.53 Hence national legal systems, while generally being open to international law, might insist on guarding certain policy areas from external influences, which usually results in retaining full sovereignty and hindering the implementation of the international norm in question. The reason for this domestic judicial resistance is twofold: first, international law has become much more regulatory in fields that were traditionally governed by national law alone, most prominently concerning the rights and obligations of individuals in general and human rights in particular; and, secondly, international law lacks the same standard and quality in terms of the rule of law, which makes domestic courts more reluctant to accept international norms not conforming to municipal standards of protection.
The result of this is a widening gap between international law (which continues to claim supremacy over national legal orders) and domestic law (where courts may resist this claim with reference to fundamental rights protection). Interestingly, the scope of this problem differs widely between the various sources of international law: while it is marginal or even non-existent regarding customary international law, there are abundant issues with respect to treaty performance and decisions of international organizations, particularly when courts argue that decisions go beyond the original powers granted to such organizations by their respective founding treaty.54
Ultimately, the overall result is an emerging picture of domestic courts resisting the supremacy of international law, picking and choosing when to accept and when to reject it. The question remains, nonetheless, what this ‘supremacy à la carte’, i.e. a supreme status that is, after all, contingent on the will of the states, means for a monist view of the law.
Thus, dualism and pluralism fail in explaining the relationship between different bodies of law if they simply duplicate or even multiply the respective grounds of validity. If we remember the core claim of dualism is that owing to the different grounds of validity of international and national law, international law is only valid and applicable within national law if the latter explicitly provides for this.
1 MALCOM N. SHAW QC, INTERNATIONAL LAW 92-95 (Seventh edn. Cambridge University Press 2014).
2  UKHL 16, URL: https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd060329/jones.pdf (last visited Oct. 28th, 2020). The House of Lords held that even though aggression was a crime under International Law, it was not a crime under English Law as it has not been criminalized by the Parliament.
3 LaGrand (Germany v. United States of America), ICJ GL No 104, icj-cij.org/en/case/104 (last visited Oct. 27th, 2020) and the Avena and Other Mexican Nationals (Mexico v. United States of America),  ICJ Rep 12, URL : https://www.icj-cij.org/en/case/128 (last visited Oct. 27th, 2020).
4 Responsibility of States for Internationally Wrongful Acts, URL: https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf (last visited Oct. 24th, 2020).
5 Vienna Convention on the Law of Treaties, 1969, URL: https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf (last visited Oct. 24th, 2020)
6 AVAILABLE ON URL : https://legal.un.org/riaa/cases/vol_XXIX/125-134.pdf, (last visited Oct. 16th, 2020).
7 Summaries of Judgments, Advisory opinions and orders of the Permanent Court of international Justice, p 240, URL : https://legal.un.org/PCIJsummaries/documents/english/PCIJ_FinalText.pdf, (last visited Oct. 28th, 2020).
8 Elettronica Sicula S.p.A.(United States of America v. Italy), ICJ GL No 76, URL : https://www.icj-cij.org/public/files/case-related/76/076-19890720-JUD-01-00-EN.pdf (last visited Oct. 25th, 2020).
9 See e.g., Anglo-Iranian Oil Co. (United Kingdom v. Iran),  ICJ Rep 93, URL : https://www.icj-cij.org/public/files/case-related/16/1999.pdf (last visited Oct. 21st, 2020).
10 Supra note 7, p 44.
11 See e.g., Interpretation of the Statute of Memel, PCIJ Series A/B, No. 49, URL : https://www.icj-cij.org/public/files/permanent-court-of-international-justice/serie_AB/AB_49/01_Memel_Arret.pdf (last visited Oct. 20th, 2020).
13Charter of the United Nations and Statute of the International Court of Justice URL : https://treaties.un.org/doc/publication/ctc/uncharter.pdf (last visited Oct. 19th, 2020).
14 D.A. JEREMY TELMAN, A MONIST SUPREMACY CLAUSE AND A DUALISTIC SUPREME COURT: THE STATUS OF TREATY LAW as U.S. Law, 2 Law Faculty Publications , Valparasio University (2013), URL : https://scholar.valpo.edu/cgi/viewcontent.cgi?article=1300&context=law_fac_pubs (last visited Oct. 19th, 2020).
16 TORBEN SPAAK, KELSEN ON MONISM AND DUALISM, URL : https://www.researchgate.net/publication/256051854_Kelsen_on_Monism_and_Dualism (last visited Oct. 16th, 2020).
17 CHUKWUEMEKA A. OKENWA, Has the controversy between the superiority of International Law and Municipal Law been resolved in theory and practice? 32 JOURNAL OF LAW, POLICY AND GLOBALISATION (2015), URL : https://core.ac.uk/download/pdf/234650096.pdf (last visited Oct. 18th, 2020).
18 SWITZERLAND CONST. art. 89, https://www.constituteproject.org/constitution/Switzerland_2014.pdf?lang=en (last visited Oct. 20th, 2020).
19 FRENCH CONST. Title VI and art. 56, https://www.constituteproject.org/constitution/France_2008.pdf?lang=en (last visited Oct. 20th, 2020).
20 U.S. CONST. art. 2, https://www.govinfo.gov/content/pkg/CDOC-110hdoc50/pdf/CDOC-110hdoc50.pdf (last visited Oct. 20th, 2020).
21 Attorney General for Canada v. Attorney General for Ontario,  AC 326 (Privy Council), Dualist approach was approved by the Privy Council in this case.
22 INDIA CONST. art. 51.
23 Ali Akbar v. United Arab Republic, AIR 1966 SC 230 3.
24 In re the Berubari Union and Exchange of Enclaves, reference under Article 143, AIR 1960 SC 845 8.
25 INDIA CONST.
26 Dr. KASHYAP began career at Allahabad as Journalist, Advocate and University Teacher. He joined the Parliament Secretariat in 1953 and was associated with Parliament of India for over 37 yrs. He became Secretary-General of Lok Sabha on 31 December 1983. He took voluntary retirement in 1990 from the Post of Secretary-General, Lok Sabha and Lok Sabha Secretariat, Parliament of India. Dr. KASHYAP had an outstanding academic career with higher education and professional training in India, U.S.A., U.K., and Switzerland.
27 UNIVERSAL DECLARATION OF HIMAN RIGHTS.
28 INDIA CONST. Art. 51 is inspired from the DECRATION OF HAVANA adopted on 30th November 1939.
29 INDIA CONST. art. 73.
30 INDIA CONST. art. 253.
31 Supra Note 31.
32 INDIA CONST. art. 300
33 INDIA CONST. art. 2.
34 INDIA CONST. art. 368.
35 APARNA CHANDRA, India and international law: formal dualism, functional monism, 57 Indian Journal of International Law (2017) URL :
https://www.researchgate.net/publication/321219195_India_and_international_law_formal_dualism_functional_monism (last visited Oct. 18th, 2020).
36 Maganbhai Ishwarbhai Patel v. Union of India, (1970) 3 SCC 400.
37  AC 326 (Privy Council).
38 Supra Note 23.
39 People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568.
40NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION, A Consultation Paper on Treaty-Making Power under our Constitution (2001), https://legalaffairs.gov.in/sites/default/files/Treaty-making%20power%20under%20our%20Constitution.pdf ( last visited Oct. 20th, 2020).
42 The Government of India (Transaction of Business) Rules, 1961, the Second Schedule, Rule 7, URL : https://cabsec.gov.in/writereaddata/transactionofbusinessrulescomplete/completeaobrules/english/1_Upload_30.pdf (last visited Dec 15th ,2020).
44 Supra Note 28, at 7.
45 Supra Note 28, at 8 and 9.
46 Provisions in regard to the judiciary in India are contained in Part V (“The Union”) under Chapter IV titled “The Union Judiciary” and Part VI (“The States”) under Chapter VI titled “Subordinate Courts” respectively. See D.D. Basu, Introduction to the Constitution of India, 20th Edn (Nagpur: Wadhwa Sales Corporation 2008).
47 See S.P. SATHE, “Judicial Activism: The Indian experience,” WASHINGTON UNIVERSITY JOURNAL OF LAW AND POLICY, vol. 29, no. 6, 2001.
48 (1973) Supp. SCR 1.
49 AIR 1997 SC 3011.
50 AIR 1980 SC 470.
51 AIR 1976 SC 1207.
52 AIR 1996 SC 2715.
53 Nollkaemper, National Courts (n 51) 282; Peters, ‘Supremacy Lost’ (n 161) 193.
54 THOMAS GEHRING, ‘Treaty-Making and Treaty Evolution’ in DANIEL BODANSKY, JUTTA BRUNNEE, and ELLEN HEY (eds), The Oxford Handbook of International Environmental Law (Oxford University Press,2007) 466.