Law has been at the centre of all human activities since the inception of mankind. The organization of legal framework may have been varied as per the existing norms and precedents of that society but the underlying principle has always been to regulate human conduct. Law being an inter-subjective study, it is perceived as dynamically symbiotic and paramount for the equitable functioning of the civilized world. In today’s world, the role of law is no longer limited to a defined geographical location but has expanded to construe the relationship among nations.
Purpose and Relevance
In the present times, the world inevitably has become smaller with countries being dependent on each other for various reasons, may it be, for resources or strategic defense etc. The actions taken by one nation not only influences the lives of the people within the border but has implications far beyond those borders. Such actions have the potential to alter a nation’s domestic policy development and determining the status of the nation in the world order. Thus, it becomes quintessential to cater such decisions to the premise of international law to ensure minimal conflict and maximum harmony.
The primary reason for the establishment of law in society is to govern the subjects of such a legal system. In the case of international law, States are the primary subjects as well as contributors, regularly adopting doctrines from international law into the domestic legal system. Further, in a time like this, when nations are competing to achieve a global presence by making investments in the development and capacity building of other nations, it becomes essential to ensure a peaceful environment which can be achieved by regulation and enforcement of International Laws.
Where does the Indian Constitution fit in
Generally, the status of the International Law in a State is determined by the provisions entailed in the Constitution of that State. Indian Constitution, with rule of law at the centre of its core, provides certain provisions for interaction and inter-relationship with International Law. The Preamble to the Constitution of India provides for various values and lays the foundation for several rights, find its origin in documents such as the Universal Declaration of Human Rights (UDHR). Not only this, but Fundamental Rights also enshrined in Part III of the Constitution, along with Directive Principles of State Policy enumerated in Part IV are accepted as universal and basic by most nations of the world. Moreover, these rights and duties can be traced back to international covenants such as International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (OHCHR).
Article 51 is the most significant provision to understand the inter-relationship between the Constitution of India and International Law, inspired by the Declaration of Havana adopted on 30th November 1939. It mandates the State to endeavor to promote international peace and security, to maintain good relations with other nations, to respect international law and to settle international disputes by peaceful means. Further, clause (c) directs the State to foster respect for International Law and treaty obligations. By the virtue of it being one of the Directive Principles, Art. 51 is not enforceable through a court of law. Dr. Ambedkar had said in the Constituent Assembly that the intention was that the executive and legislature should not only pay lip service to these directive principles but “they should be made the basis of all executive and legislative action that may be taken hereafter in the matter of governance of the country.”
Article 73 of the Constitution extends the powers of the Central Government to matters in respect of which the Parliament has the power to make laws, subject to constitutional provisions or any law made by the parliament on that behalf. This provision entitles the executive to incur any sort of treaty obligations. Further, as per Article 253 of the Constitution, the Parliament has been empowered to enact laws to enforce international obligations, notwithstanding the constitutional distribution of powers. In addition, the provision overrides even the provisions enshrined in Chapter 1 of Part XI of the Constitution which deals with the distribution of powers between the Union and other States. Hence, the Parliament has been empowered to enact laws to implement international treaties, agreements, conventions or decisions taken in international conferences, organizations or any other body. It is to be noted that India presently has no legislation to limit the power of the executive in matters of international law and relations, which leaves the executive with the extensive powers in this regard.
The distinction between the role of legislature and executive has to be clearly understood in order to comprehend the inter-relationship between Constitution and International Law. Legislature being an exclusive law-making authority, a treaty must necessarily be ratified by the legislature to make it binding on the State. On the other hand, the executive is liable to incur legal obligations on the behalf of the State. But as already pointed out, there is no legislation to put fetters on executive powers in regard to international law, therefore, the Hon’ble Supreme Court has held that international law forms a part of municipal law, except when it is inconsistent with the provisions of municipal law. Hence, 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.
Article 300 of the Constitution empowers the Central Government to sue or to be sued in the name of Union of India. So, the Central Government is entitled to sue other State or be sued by another State in an International Court to which both are parties that. Further, Article 260 allows the Central Government to enter into an agreement with any other foreign state to undertake legislative, executive or judicial functions in such other foreign state. Moreover, in regard to accession of foreign territory, Article 2 empowers the Parliament to admit foreign territories into the Union by way of a legislation. But, if territory of India has to be ceded, a constitutional amendment under Article 386 will be required, as the Constitution does not specifically empower the Parliament to do so.
The path ahead for international law
Developments in International Law through decades have compelled the States to imbibe and adopt such laws in their domestic legal systems, especially in the sphere of Humanitarian Law, Environment Law etc. A bare perusal of the Constitutional provisions points towards the fact that the framers of the Constitution have given little significance to the position of International Law under the Indian legal system. Sincere efforts need to be made for effective implementations and application of the International Covenants, Treaties under the Indian legal system and should not be left as mere promises.
*This article has been written by Gaurav Redhal. He is currently a fifth year student at the Army Institute of Law, Mohali. He will soon be joining the prestigious Fletcher School of Law and Diplomacy, Massachusetts for his Master’s.
This article was originally posted here