International Law and Treaties – and How we Treat them

Article for Blog Post Writing Competition 2011 | by Vikrant Shetty

April 8th, 20118:18 pm

Global LawIndia’s legal position in respect of international law is a complicated concept and one which our legislature does not elaborate upon. This, may in one way be a boon as it gives the courts of law the benefit of doubt, however it usually leads to conflict of opinions between various courts and judges.

Article 51 (c) states that the State shall endeavor to “foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and encourage settlement of international disputes by arbitration”

This Article comes under Part IV of the Indian Constitution, i.e. it is a directive principle of state, which means that by virtue Article 37, it cannot be enforced in the courts of law. The term “international law” relates to international customary law. This means that prima facie, international customary law is not incorporated into Indian municipal law. Indian law has not accepted Blackstone’s doctrine that the law of nations is part of the law of the land.
In England, a number of legal precedents show that if it is proved that a large number of nations follow universally a certain rule of customary law, It can be made applicable by the courts without legislative enactment.

In Gramophone Company of India Ltd. v. Birendra Bahadur Pandey [AIR (1984) Supreme Court p. 667], the observations of the Supreme Court relate to the binding force of the customary rules of International Law. From the decision of this case it was made clear that the Indian Courts shall apply customary International Law in India to the extent they are not inconsistent with the municipal laws.

Indian lawyers raised another feature of the directive principles of State policy which would also affect article 51 (c). Let us assume that the legislature passes a law which goes against a directive principle. Can the President refuse his approval to such a law? Dr. Ambedkar, who was once the Indian Minister of Law and one of the main drafters of our Constitution, showed a resilient disapproval to the notion of such authority by the President. However, there is no constitutional convention which can prevent the President from doing so as long as he/she acts constitutionally. Thus, if the legislature would pass a law which disregards an essential rule of international law, the President could refuse to give his approval to such a law. Thus he would be able to provide an additional precaution for maintaining the proper relationship between international law and municipal law in India as stated in article 51 (c).

Setting aside the part about international law, let us discuss the matter of international treaties. The position of treaty law in India has been recently considered by the High Court of Rajasthan in a habeas corpus case connected with an extradition treaty [Birma T. The State [1951] A.I.R. (88) Baj. 127].The petitioner was a citizen of former Dholpur State, which had, concluded an extradition treaty with the British Government prior to independence. The treaty had, however, never been incorporated into the law of the State by legislative enactment. Though the Dholpur State had acted in accordance to the treaty in the past, it failed to became, part of its municipal law. In the end the petitioner was arrested, the Hon. High Court, adjudicating his petition for a writ of habeas corpus, found its hands tied as it impossible to apply a treaty which was not incorporated into municipal laws. Contrary to what many laymen might think, the courts of law are always under obligation to follow the due process of law established by Parliament.

In Bangalore v. Union of India [AIR (1983) Karnataka p. 85] “if the Parliament does not enact any law for implementing the obligations under a treaty entered into by the Government of India with foreign countries, courts cannot compel Parliament to make such such law the absence of such law, Court cannot also enforce obedience of the Government of India to its treaty obligations with foreign countries.”A recent example can be taken of a case in the Honorable High Court of Bombay, where an application was filed for the name of the court be changed to ‘Mumbai High Court’. However, the court dismissed on the grounds that the name ‘Bombay High Court’ was given by the ‘Letters Patent of 1866’ which was enacted by the Queen of England and that only Parliament had the right to amend it.

However the extradition case was a landmark case and made the law makers realize the need for a statute for extradition laws. This led to the Extradition Act of 1962.

law. Dholpur municipal law is now Indian municipal law. . The Court made a simple and rather misleading statement in Nanka v. Gov. of Rajatthan { [1951] A.I.B. (38) B»j. 163} .  “Treaties which are part of international lawdo not form part of the law of the land unless expressly made so by the legislative authority.”

Accordingly a Roundtable Conference on Article 51 of the Constitution of India was held in which a number of judges and legal luminaries the concept of a legally constituted “World Parliament” as an impartial international law making body that could resolve international disputes through arbitration and legislation. Encouraged by the success of the Roundtable, CMS organised a Seminar on Article 51 of the Constitution of India The Seminar was followed by the 1st International Conference on Article 51 of the Constitution of India.

Furthermore, arbitration would be taken to the next level. For those who don’t know, arbitration is a form of alternative dispute resolution. It is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons), by whose decision they agree to be bound. Best way to explain arbitration is by the example of the story of two cats fighting for a cake, until they present their problem before a monkey who they mutually decide should resolve the matter. Arbitration cases generally start where the courts do not have jurisdiction, such as international matters or where the parties prefer not to take the matter to courts.

In Conclusion: Application of International Law depends largely upon the legislature as well as judiciary of a State. They are expected to take proper perception and strive to honour the international obligations of the State. It has to be comprehended by them that neither municipal law nor International Law is supreme, but they are concordant with each other. However, Municipal laws must be given a bit more importance so as to not affect the sovereignty of the state. Courts and Parliament have been made to solve the problems of human beings in different areas. If they refuse to accept the rules of International Law, relations between India and other States would obviously become stressed and the high principles of maintaining international peace and security would begin to look like an impossible dream. The idea of dualistic theory should be set aside and monistic theory should be accepted.

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Article by-

-Vikrant Shetty, First year student

Rizvi Law College, Mumbai

[Submitted as an entry for the Blog Post Writing Competition, 2011]

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