international law

In this article, Yashwant Naik makes a comparative study of the practice of International law between India and Europe.

The Indian Constitution ensures high regard to international law. Article 51 of the Indian Constitution serves only as a directive of State Policy

“to endeavour a) to promote international peace and security; b) to maintain just and honourable relations between nations; c) to foster respect for International law and treaty obligations in the dealing of organised people with one another; and d) to encourage settlement of international disputes by arbitration.”

  • Although the Directive Principles of State Policy in this regard may not be enforceable under the Constitution, its principle is fundamental in the making of laws. The non-enforceability of Article 51 does not hinder the government from implementing or executing the provisions of the international treaty. Also, the Judiciary through it judgments can interpret the provisions of the international treaties or conventions into the municipal laws of the country.
  • It is noteworthy to cite the ruling in A.D. M Jabalpur v. Shukla. In that case, Justice H.R. Khanna held that,

“if there was a conflict between the provisions of an international treaty and the municipal law, it is the latter that will prevail. But if two constructions of the municipal law were possible the court should give that construction which might bring harmony between municipal law and international law or treaty.” In contrast to the situation in India, it is interesting to compare and analyse the application of International law in the European Union.

In contrast to the situation in India, it is interesting to compare and analyse the application of International law in the European Union.

The European International law is a combination of a complex relationship between Public International Law, European Union (EU) Law and Domestic Law. The emergence of EU political dynamics, the external policies, laws and policies of international organisations etc. have created an EU ‘international law practice’. This has affected the means and methods for the enforcement and implementation of international law. The International instruments have become a part of EU Community order, and non-compliance on the part of Member States can incur state liability. EU Community order is the medium through which International treaties, agreements, flow to the Member States.

Under such circumstances, the European lawyers have to focus on a wider context, which is quite a great task and objective. Also, it is very interesting to know how the Austrian, French, Italian, Spanish, Portuguese, Polish, Hungarian and German jurists talk about the case laws of the International Court of Justice. They all address the same subject with their European and national preconceptions in mind. Thus the law on each level is not separate but interconnected with the others.

  • It is also interesting to understand the interpretation and application of international agreements in the Member States. In this case, it is not only a matter of international law or national law of the respective Member State but also an issue of European Community law.
  • For instance, in Liechtenstein, the legal effects of the international agreements depict the general relationship between national and international law in Liechtenstein’s legal system.
  • Similarly, courts in Switzerland apply treaties automatically upon their entry into force on the international level.
  • In Austria, general rules of international law are directly incorporated into Austrian federal law. The Supreme Court of Austria accepts and applies the direct effect of treaty provisions that grant rights to individuals unconditionally.
  • For the German Basic law, it means the generally recognized principles of international law.
  • The Polish Constitution recognizes International law as binding the State.
  • The Italian law aligns with the generally recognized principles of International law. Other constitutions have similar provisions in connection with the decisions of international treaties.
  • The Portugal basic law, the Greek constitution, the Finnish basic law, and the French constitution provide that treaties and or decisions of international organizations and acts promulgating these treaties or decisions have primacy over domestic law.
  • In contrast to the above, the Hungarian Constitution accepts the generally recognized principles of international law, and harmonizes the country’s domestic law with the obligations assumed under international law. However, in practice Hungarian courts and other authorities appear unwilling to apply international law in cases before them. Thus, in Hungary international treaties are placed below the Constitution.
  • Likewise, the Spanish Constitution states that drawing up a treaty containing a provision contradictory to the Constitution requires a preliminary amendment of the Constitution. In this sense, the position of Hungary and Spain is more or less similar to that in India.

Undoubtedly, in most of the Member States there is absolute priority of the general principles of International law over Domestic law, this is not the situation in case of India. Thus, the EU duly acknowledges its commitment towards international law realising that its Member States have a tremendous opportunity to work together to strengthen the global legal order, also to find answers to the common questions related to the accountability and the legitimacy of international law. In this sense, India can learn a lot from Europe.

 

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