This article is written by Kalhan Safaya of Hidayatullah National Law University
Table of Contents
Introduction
“Until the municipal Law is changed to accommodate the [treaty], what binds the courts is the former, not the latter”
~ Honorable Justice Krishna Iyer in the case of Jolly George Verghese v. Bank of Cochin
International law has a complicated and tense correlation with a country’s national laws. The two structures are frequently comprehended as distinguishable judicial systems with their own set of guiding principles. Before we can understand the relationship between international laws and metropolitan laws, we must first comprehend them.
International legal principles
The term “Laws of Nations” or “International Law” refers to the body of conventional and treaty rules that are legally recognized enforceable by states in their interactions with one another. We can gain the meaning of international law as characterized in the situation of R. v. Keyn; Chief Justice Coleridge described International Law as
“The collection of usages which civilized states have agreed to observe in their dealings with one another.”
It can be also encapsulated as:
“The sum of the rules accepted by civilized states as determined by their conduct toward one another’s subjects.”
Municipal Law
Municipal law is defined as a free and independent state’s national, institutional, or structural law as opposed to international law. It also includes law at the nationwide, statewide, and province-wide stages, as well as regional, territorial, and provincial levels. International law treats all of these laws equally and makes no distinction between a state’s common law and its constitutional law.
To illustrate the relationships between international law and municipal law, we first must try to comprehend the perspectives of scholars on the subject, which can be divided into two broad categories:
- Monism
- Dualism
Monism
“Monism regards international law and municipal law as parts of the same base of information, namely law. Monists believe that the domestic and foreign legal systems are inseparable. They both function in the same circle of interest and are concerned with the same subject, which can lead to conflict; however, if a conflict arises, international law will take precedence. Monism holds that any national law that refutes international law, even if it is the constitution, is invalid. According to Kelsen, the sole determiner of the legitimacy of all law is extracted from a rudimentary rule of international law known as a Grundnorm. His concept comes to the realization that all international law rules were supreme over domestic law, that municipal law that contradicted international law was immediately invalid, and that international law rules were directly applicable in the private realm of the state. International and municipal laws are two sides of the same coin. The former, while discussed explicitly to nations as corporations, is also applicable to individuals because states are simply groups of individuals.”
Dualism
“The dualist doctrine emerged in the nineteenth century. According to this principle, international law and municipal law are distinct legal edicts that operate and function independently of one another. Dualists emphasize the distinction between these two types of laws and advocate for the interpretation of international law into municipal law. International law does not occur as law unless it is translated; international law must also be a national law. International law is the law that applies between independent nations and is based on the widely accepted will of states for its jurisdiction, whereas municipal laws apply within the state and regulate civilians’ actions and derive power from the state itself. When both of these laws comply with the same subject and there is a confrontation, a municipal court applying the dualist dogma will implement municipal law. As a result, this doctrine regards international law as a weak law because it is based on a pact between states.”
The Indian Constitution “Articles 51, 73, 245 & 246” have given consideration to “international laws” and “treaties” but clause ‘c’ of “Article 51” specifically mentions “International law” and “treaty obligation” but “Article 51” does not provide any specific directions regarding the position of international laws in India as well as the correlation of municipal laws and international law, but we can obtain advice from Prof. C.H. Alexandrowicz who opines:
International law is included in municipal laws in India if it is not incongruent with any appropriate legislation or constitutional provision. Indian courts may impose international law if it is not in conflict with national legislation.
Case study
In terms of incorporating international laws into municipal law, the Indian constitution adheres to the ‘dualistic’ theory. In India, international laws do not immediately become part of the national statutes. They must be integrated into the judicial system through a parliamentary act. The court will first take a gander at the municipal law, and if the municipal law is inactive on a point, the court will pertain to the Customary International Law for allusion.
Facts
The same thing has been done by the SC time and again, and in the case of “Jolly George Varghese and anr. V. The Bank OF Cochin”, this view was accepted.
The Calcutta High Court explained in “Shri Krishna Sharma v The State of West Bengal”:
“A.D.M. Jabalpur v. Shiv Kant Shukla” was another case of this genus. During his dissenting opinion, Justice H.R. Khanna stated that:
“If there is a confrontation between municipal laws and International Law (customary International Law), the Courts must apply municipal law.”
Nevertheless, in some instances, the Supreme Court applied Customary International Law as well. For example, the case of “Gramophone Company of India Ltd. v. Birendra Bahadur Pandey” clearly opines the Supreme Court’s findings on the governing force of customary laws of International Law. The decision in this case established that Indian courts shall apply customary international law in India to the degree that it is not incongruent with municipal law.
Alluding to the “precautionary principle” and the “polluter pays principle” as a component of the nation’s environmental legislation, the Supreme Court held in “Vellore Citizens Welfare Forum v. Union of India and Others”:
It is a nearly widely recognized legal prospect that:
The above perspectives are consistent with the dualistic theory, according to which a convention becomes a component of the law of the country only after it is enacted by the parliament and instituted. When there is no discrepancy between them, international conventions and norms are to be interpreting into them in the utter lack of implemented domestic law inhabiting the ground.
In fact, the expanding field of international law has compelled most states to comply with an ambivalent relationship in which international law regulations are viewed as part of a distinguishable scheme but worthy of being implemented structurally depending on circumstances, while domestic courts are progressively being compelled to perceive international law rules.
Judgment
The notable Supreme Court ruling in “Jeeja Ghosh v. Union of India” should be commemorated for solidifying the rights of people with disabilities to inspire confidence. This issue originated from a PIL filed after Spice Jet forcefully deboarded Jeeja Ghosh due to her impairment. The court ruled that the airline’s actions were illegal and instructed it to reimburse the plaintiff Rs. 10 lakh. In deciding the case, the court cited international law to emphasize the rights of people with disabilities. Paragraph 13 of the judgment, for example, states:
“The Vienna Convention on the Law of Treaties (VCLT)”
It was signed in 1969 and came into effect in 1980, so the court’s reference to 1963 is puzzling. Regardless, the first comment of paragraph 13 looks to be an articulation of the international law concept of “pacta sunt servanda”. According to this principle, which is stated in “Article 26 of the VCLT”, every treaty signed by a country is enforceable on it, and the responsibilities inflicted by treaty obligations must be fulfilled in good conscience by the nation.
One way to honour treaty obligations is to ensure that the country’s domestic laws are consistent with its treaty obligations. This is reflected in the first sentence of paragraph 13 of the verdict. Nevertheless, if that’s the scenario, one must speculate why the second phrase of the same paragraph mentions “Article 27 rather than Article 26”. It creates the sense that the court is rationalising its application of the “pacta sunt servanda doctrine” by citing Article 27 of the VCLT when it should have referenced Article 26.
Article 27 of the VCLT serves a different function. It forbids the use of domestic law as a rationale for violating international law. Such that, if a nation is found to have violated international law, it cannot use domestic law to defend itself. This concept is also mirrored in Article 3 of the International Law Commission’s (ILC) Articles of Responsibility Of states, which states that the designation of a state’s act as internationally wrongful is governed by international law and is unaffected by the designation of the same act as lawful under domestic law. As a result, the relevance of citing Article 27 in the judgment is debatable.
The wording of the judgment at hand is reflective of the postulate that the Indian Supreme Court still lacks complete clarity on the nature of international law and its correlation with India’s domestic legal system. The pervasiveness of international law today governs a wide range of issues, including the ecosystem, commerce, financing, safety, and civil liberties. This pervasiveness of international law has a direct effect on nations. As a result, a better knowledge of international law and its intersection with national law is critical. With the exception of some countries, where international law is counted as part of the law of the country even without transition to domestic law (i.e. the premise of monism), international law does not become enforceable under the Indian constitution until adequate legislation is enacted to give it a consequence. This is the dualism principle, and it is expressed in Article 253, which gives parliament the authority to enact laws that enforce international law.
Matter of fact, numerous cases resolved by high courts and the Supreme Court mirror the Indian legal system’s dualist strategy. According to Justice Krishna Iyer in “Jolly George Verghese v. Bank of Cochin”, “until the municipal Law is changed to accommodate the [treaty], what binds the courts is the former, not the latter.” Lately, in “State of West Bengal v. Kesoram Industries”, the Supreme Court reaffirmed that India adheres to the “doctrine of dualism” and that “a treaty entered into by India cannot become law of the land…unless Parliament passes a law as required by Article 253.”
To summarise, international legal norms are not directly enforceable in Indian courts until domestic law gives these norms consequence. In exercise, nevertheless, courts have engaged in what has been termed “creeping monism,” or the incorporation of international legal norms into domestic law. This blurs the line between dualism and monism and increases several conceptual issues.
Conclusion
Hence, International law and national legislation have a difficult and contentious relationship. The two frameworks are often thought of as separate judicial systems with their own set of guiding ideas. We must first know international and metropolitan rules before we can realise their relationship.
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