An idea of the International Treaty
Treaty is an agreement under International Law concluded by two or more nation-states or between nation-states and International (intergovernmental) organizations. Treaty is also called International agreements, protocols, conventions and covenant. Based on the nature of the treaty, it can be classified as binding and non-binding treaties. Based on the number of countries that ratified the treaty, the treaties can be classified as bilateral and multilateral treaties. The subject of the treaty is of course of utmost importance to the parties to the agreement. It also implies that the agreement reached is in line with international law. Furthermore, international law states that many of these treaties and conventions would apply to all countries, whether or not they signed the agreement.
Relation of International Law and State Law
International law and state law (municipal law) are two separate legal systems, existing independently of each other. International law can act as municipal (state) law in certain circumstances, but state law cannot act as international law. State law has binding force in its territory of a sovereign state. But under certain circumstances, international law may not have such a binding force, unless and until the sovereign state incorporates it into its state law.For this reason, there may be controversy as to whether the relationships between these two laws are coordinating relationships between existing independent orders or subordinate relationships to one another or to the other. Or even if they are part of the same order but are both subordinate to a higher order. Both must claim to be, and indeed, applicable in the same field, that is, to the same set of relationships and transactions.
To understand the application of international law in the municipal sphere in India one needs to go through 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 and 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.
Application in India
The Constitution of India has a provision in international law under Article 51. It is in the State Policy Principles Directive (DPSP) that they are of a directive nature and cannot be applied by a court (within the meaning of Article 32 or Article 226). However, this article 51 clearly shows the intention of the framers of the Constitution of India. The founding fathers of the Constitution of India had a clear vision of international law.
Chief Justice Sikri opined in the case of Kesavananda Bharati v.the State of Kerala that in view of Article 51, the court must interpret in light of the United Nations Charter and solemn declaration subscribes to India. The Hon’ble Supreme Court in the case of Gramophone Co of India v. Birendra Bahadur Pandey held that the association of nations requires that the rules of international law be housed in municipal law, even without explicit legislative sanctions, provided it does not conflict with the acts of parliament. is incorporated into the national law and is considered part of the national law, unless it is contrary to the Act of Parliament.
The question of whether the treaties are automatically binding or whether they require legislation to do so was resolved in the ruling of the Honourable Supreme Court of India in the main case of Jolly George Varghese and others v. Bank of Cochin. In this case, the Honourable Supreme Court of India, in the words of Justice Krishna Iyer, said that the positive commitment of the States Parties ignites the legislative action at home but does not automatically make the alliance as an executive part of the corpus juris of India.
The International Treaties or Conventions are enforceable in India but not directly, in the event that such treaties and conventions are not incompatible with national laws in India. The courts in India hold the responsibility for enforcement of International Treaties and these can be enabled by the legislation of an Act through the Parliament. There are several such laws that have been enacted by the Indian Parliament once India has become a signatory to related treaties and conventions. Example: The Diplomatic Relation (Vienna Conventions) Act 1972, Protection of Human Rights Act 1993, SAARC Convention (Suppression of Terrorism) Act 1993. Similar Acts are issued with regard to territorial waters, exclusive economic zone etc.
Edited by Pushpamrita Roy
Approved & Published – Sakshi Raje
(1973) 4 SCC 225: AIR 1973 SC 1461
1984 AIR 667, 1984 SCR (2) 664
1980 AIR 470, 1980 SCR (2) 913