This article is written by Vanya Verma, from Alliance University, Bengaluru. This article examines the general stance of international law and domestic legal regimes on the legal impacts of international law in the Indian legal system, as well as the process of implementing international law in India along with the problems that arise while enforcing international law in India and suggests a new legal framework for better implementation of international law.
Table of Contents
The process of incorporating international law into domestic law is not governed by international principles in general. There is no international authority in charge of enforcing the law. States follow different processes of incorporating international law into their domestic legal system under domestic law, such as constitutional provisions and customs. Also, the constitutional provisions of States for the implementation of international law are different. Domestic courts may choose or be obliged to ignore international law until it is incorporated into domestic law. As a result, the implementation of international law in a country is determined by the domestic legal system’s policy objectives and principles. However, before international tribunals, the state cannot ignore its commitments under international law.
Even if international law disagrees with the parties’ domestic laws, international tribunals give effect to international law. In case if domestic law clashes with the parties’ treaty obligations, their constitutions are not considered.
Indian courts are hopeful about the application of international law in domestic courts, and their strategy is changing all the time. India has made a case for its commitment to international law development and implementation. India, on the other hand, plays no role in the formulation of some of the basic fundamental concepts of international law. India has made major contributions to international law, particularly in the fields of human rights, environmental law, arbitration, and trade law. On the other hand, India is hesitant to draft treaties that limit its sovereignty and explicitly seek to accord domestic courts a judicial enforcement role.
The United Nations states that “International law establishes the legal obligations of states in their interactions with one another and their treatment of individuals inside their borders. Its jurisdiction spans a wide variety of international concerns, including human rights, disarmament, international crime, refugees, migration, nationality difficulties, prisoner treatment, the use of force, and war conduct, among others. It also oversees global commons such as the environment and sustainable development, international waterways, outer space, global communications, and international trade”.
Domestic law, as opposed to international law, is the law that applies within a state or its internal law. The words domestic law and municipal law are used interchangeably. Domestic law is a sovereign state’s national, local, or internal law, as opposed to international law. Law at the national level, as well as state, provincial, territorial, regional, and local levels, is referred to as domestic law. While they may be distinct types of law in state law, international law is unconcerned with this distinction and treats them all as one. Similarly, international law does not distinguish between a state’s ordinary law and its constitution. Article 27 of the Vienna Convention on the Law of Treaties states that even if a treaty contradicts a state’s municipal law, the state must still comply with the treaty’s obligations. Article 46 of the Vienna Convention provides the single exception to this norm, which applies where a state’s expression of consent to be bound by a treaty was a manifest violation of a “rule of its internal law of fundamental importance.”
Role of Indian judiciary in implementing International Law
The attitudes of Indian courts on international law have been evolving. In several cases, the Indian Supreme Court has emphasised that, when considering the constitutional requirement, courts should keep in mind the core principle embodied in international conventions and instruments and, to the extent possible, give effect to the principle contained in those international instruments, particularly when there is no inconsistency between them and are void in the domestic law. Indian courts can use International Conventions as external aid in forming domestic legislation if necessary. For instance, in Vishaka v. State of Rajasthan (1997), the Supreme Court relied on the International Convention to create domestic law.
Indian courts face difficulties in applying, accurately sourcing, and identifying international legal norms. For historical reasons, most developing countries approach international law with caution as a different legal tool, most likely to widen the interpretation or to maintain a comparable local legal norm. The Indian judiciary does not have the authority to enact legislation; nonetheless, it is free to interpret India’s international law commitments into domestic laws when rendering decisions in international law disputes. In this regard, the Indian judiciary has taken a proactive role in enforcing international law, particularly human rights and environmental law, under treaty law.
The Court stated in the National Legal Services v. Union of India case in 2014: “If the Indian parliament passes legislation that conflicts with international law, Indian courts are obligated to use Indian law rather than international law. In the absence of legislation to the contrary, municipal courts in India would uphold international law.” In the case of Krishna Sharma v. State of West Bengal, the Calcutta High Court stated in 1954 that when there is a conflict between international and domestic law, the courts should attempt to reconcile the two laws. In addition, courts must examine the content and interpretations of international instruments including treaties, conventions, and declarations. The Indian judiciary, at all levels, has seen significant growth in the number of cases involving international law. As a result, it can be argued that examining current trends at the intersection of international and domestic law, as well as evident changes in treaty-making processes, is necessary for determining the true emergence and development of new jurisprudence.
Major problems that arise while enforcing International Law in India
Not only in terms of culture and traditions but also in terms of timelines, India is a diverse country. Distinct timelines indicate that individuals in India live in multiple eras at the same time. India is undergoing both progress and degeneration at the same time. Even after more than seventy years of independence, India continues to battle with colonialism’s legacy and is subjected to cultural insults. Some portions of the country have developed, while others are still influenced by orthodox beliefs. On the one hand, we can see high-tech structures, but on the other hand, there are still many villages and rural places where power is a luxury that cannot be afforded. The impact of globalisation on such a diversified country is debatable. In India, social inequity has been entrenched in the caste system for a long time. Poverty, ignorance, and religious prejudice have been prevalent in India for generations, and even with the corporatization and globalisation of agriculture, water supply, power, and other key utilities, it has been impossible to eradicate them.
Because such issues make it difficult for people to cooperate even at a local level, asking for global cooperation will be too much to ask. People who live in this day but have ideologies and ways of thinking that are as ancient as the hills do not contribute to the nation’s collaboration at a worldwide stance.
India’s failure to cope up with the dynamic International Law
In several decisions over the last few decades, the Indian Apex Court has had to deal with rapidly changing and expanding international legal principles. Furthermore, international law currently deals with subject matters that are wide-ranging and diverse due to its global status.
One of the most important roles of international law in the domestic legal regime is to reflect international changes and the wide civilization. Unfortunately, Indian courts are currently conservative and cautious, and as a result, they frequently fail to cooperate with ever-changing international norms and the continually expanding scope of international law, making thorough enforcement of international law difficult.
Poor law enforcement in India
It is often argued that a law is only as good as its enforcement mechanisms, and poor countries like India cannot properly implement international law. The police and internal security systems in India are largely decentralised and frequently lack synchronisation.
International lawbreakers cannot be compared to law enforcement agencies, which are simply government employees that are undertrained, overworked, and underpaid, and who perform their duties without necessary security and protection. Furthermore, India’s border patrol officials, federal agents, and local police officers do not have a thorough understanding of international law.
In India, the massive resources required to ensure that officials can properly enforce international rules at the national or local level are restricted or unavailable. Even if individual incidents are investigated and prosecuted, the enforcement of international law in India is hampered by lax enforcement, a shortage of qualified police officers, and an overworked and under-resourced court system.
Infrequent use of International Law only as an exotic device
Without a doubt, India recognises international law; nevertheless, Indian courts do not justify the entire scope of international law because it is only an exotic device utilised by the courts of law. The Indian courts have not yet completely adapted international law. It is still employed as an alien law to this day. First and foremost, to effectively execute international law throughout the state, it is necessary to become acquainted with it and embrace it from top to bottom. There should be no restrictions on its use, and any potential for irresponsibility while using it should be eradicated.
Lack of experts and professionals
India, being a third-world country, has a shortage of skilled and experienced specialists in the domains of law, particularly global law such as international law. After establishing an international law division, it is necessary to staff it with appropriate legal consultants, which is a far more difficult undertaking. There are still empty positions in the legal section even after more than seventy years of independence.
There is a failure to find qualified individuals for all of the positions that India has managed to generate despite numerous setbacks. About 30 people were interviewed in July 2019 for five positions, however, only two were recommended.
One explanation for this failure is because Indian institutions do not devote enough attention to public international law, and students choose subjects that they believe will be more beneficial for their private practice as attorneys. The majority of young Indian lawyers who select international law opt for arbitration (international business arbitration), which is potentially more profitable. Although the evolution of modern communication technologies and the broadening scope of education has increased by professionals, the numbers do not yet reach the requisite level, particularly in the field of international law, where such rapid expansion is impossible.
Lack of recognition of International Law
Even though India recognises international law, there is a lack of recognition of international law in India, which has always operated as a roadblock to the efficient execution of international law in India. It has been demonstrated that international law is not applied in the same way in domestic courts. The approach of the courts is influenced by the transformation doctrine, which states that they should look for implementing legislation to give effect to international law.
Stiff competition and burden to impress big powers
In theory, the recognised principles of independence, sovereignty, and territorial bounds preserve state equality, but in practice, George Orwell’s oxymoronic remark that “all animals are equal, but some are more equal than others” is appropriate to illustrate the strength of states in their interactions with one another. International law is frequently shaped and written in a way that benefits specific groups or governments.
Apart from the fact that international law is most influential when it favours the powerful, the powerful are frequently the source of law. There is nothing incorrect with asserting that international law is based on the principle of “might makes right.” Many have suggested that international laws and standards are nothing more than power mirrors. International law arose from a specific social-political context in which power and resources were unequally distributed. Furthermore, the five permanent members of the United Nations Security Council (UNSC), namely the United States (US), the United Kingdom (UK), France, China, and the Russian Federation, have veto rights, implying that these five permanent members are above international law and hence immune.
The majority of international law’s norms and regulations are likely to be aligned with the interests of those in positions of power. And, as someone correctly stated, the law is only as effective as the tools of enforcement, and poor countries like India cannot respond decisively.
India, despite being a premium developing country, lags behind certain developing countries in terms of poverty, per capita income, education, malnutrition, hunger, farm employment, and B2C e-commerce penetration. As a result, India is struggling to keep up with the fierce competition. In addition, India is under constant pressure to court the world’s most powerful nations to remain competitive. All these reasons function as a burden for India in applying international law appropriately.
Denial of the existing conflict situation
During times of conflict or the advent of any form of difficulty, laws serve as a saviour. However, to put the solution into action, one must first acknowledge that there is a problem. One of the reasons why international law fails to be enforced in states is that many times, rather than recognising that a dispute exists in a particular area, state leaders choose to simply deny the existence of the conflict. This is also true in India. Since 1989, India has been at war. Whether for independence, union with Pakistan, or self-government in Jammu and Kashmir, a large number of people have been taking up arms.
Similarly, separatist groups in India’s north-eastern states, such as Assam, Manipur, Mizoram, and Nagaland, have staged revolts in which 40000 or more people have been killed. In addition, during a Maoist insurgency, around 6000 people were slain. Even when such enormities occurred within the country, India denied the existence of a conflict zone. What’s worse, the people living in those regions were not provided with the appropriate protection that should be provided during any such situation according to the Geneva Conventions, because the government did not declare them as conflict zones.
Separation from international relations as a field study
This severance has taken place in a tapestry, and it has always been gradual but noticeable. International law must be judged in the same way that its political and economic concerns are. While schools such as the “New Haven School”, founded by Myres McDougal and Harold Lasswell recognise the link between international law and politics of those who created, protested to, or explained it. Yale’s holistic approach to international law has also been extended to several other colleges and schools that excel in other subjects, such as the University of Chicago (Economics), The Fletcher School (International Relations), and Harvard University (Political Theory).
On the other hand, India has shown no signs of such a fusion. Furthermore, Indian institutions do not devote enough attention to public international law, and students choose subjects that they believe would be more advantageous for their private practice as attorneys. The majority of young Indian lawyers who select international law opt for arbitration (international business arbitration), which is potentially more profitable.
It is past time for Indian institutes to focus on increasing scholastic interest and scholarship, as only then can the country’s rapidly dwindling international legal practice be restored and reinstated.
Terrorism and disturbance from neighbouring nations
Terrorism is a term that India is familiar with. In fact, in today’s world, no country is immune to terrorism. India has suffered as a result of being colonised by Britain due to careless boundary demarcation. These mindless demarcations, whether the Radcliffe Line between India and Pakistan or the McMahon Line between India and China, have resulted in horrific human rights violations (by separation of Pakistan from India) and war (between India and Pakistan over Kashmir and between India and China over Tibet). India has had territorial disputes with many of its neighbours on various occasions.
Many of the terrorist attacks are thought to have international connections. Even though India has faced major threats from terrorism and other forms of politicised violence for decades, India’s unique antiterrorism legislation has proven to be less effective in preventing terrorist attacks. The national criminal justice systems play a critical role in combating the terrorism threat.
Conflicts with India’s neighbours plague the country regularly. For example, India has been attempting to find political as well as legal solutions to its border conflict with China for many years. Formal techniques have traditionally dominated India’s international behaviour, such as filing petitions, submitting dossiers, and complying with treaty provisions, which has not served India well in the situation of the Indo-China boundary issue. All of these issues combine to render India incapable of properly executing international law.
International Law not mentioned clearly by the Constitution drafters
India did not have much awareness of international law at the time the Indian constitution was being formed, and it cannot be blamed for this since it had been a British colony for numerous years, which prevented it from completely and freely participating in international affairs. As a result, India’s constitution contains extremely few references to international law.
The drafters of the Indian constitution took a risky approach to international law by failing to mention it as clearly as other subject issues. There are no specific provisions in the Constitution regarding the absorption of foreign law into Indian law or the status of international treaties.
As a result, there is a sense of misunderstanding among the Indian people, leading to disagreements in people’s attitudes toward international law. India’s inability to apply international law to its subject matters is hampered by a lack of cooperation and uniformity.
Low level of public awareness
In 2016, former Chief Justice of India TS Thakur said, “We must be aware of international law” while speaking at a seminar on “Principles of The Engagement of Domestic Courts with International Law.” He said, “We must be aware of what is happening in the world, prepare for it, and have the ability to deal with them,” as he highlighted coping with arising circumstances and the smaller world.
International law has always had a problem with public awareness since it has such a broad horizon that must be comprehended to have a comprehensive understanding of it. Legal knowledge, technology and access, and “impact and accountability” are all important factors in providing high-quality legal services. Many people in India live in distant locations, cut off from the rest of the world. International law is not a commonly discussed topic among the general public, and most people know very little about it. In India, the lack of citizen awareness of international law leads to the ineffective application of the law.
‘Corruption’ is a very real phrase in India, and it can be found in practically every section of the country. Because corruption has been absorbed in all levels of the Indian system, it is chronic and destructive, not to mention difficult to eradicate. It applies to all professions, including law. When a case involving the abuse of power in India has to be dealt with under international law, it becomes difficult to prosecute police officials, since there is typically no direct proof, and with local control, police officers tend to cover up for one another.
Corruption is an issue when it comes to enforcing local laws, and it becomes even more of a problem when it comes to enforcing international law because there is no proper organisation to monitor the process. At all levels of government, there is a lack of accountability for official misbehaviour, which adds to pervasive impunity.
The epidemics of corruption have spread widely not just on a national level, but also on a worldwide level. It would not be incorrect to conclude that the League of Nations failed because it was unable to punish or dissuade any states from breaking international law. For example, while being the most vocal proponents of international norms and institutions, the United States and China have taken a unilateral approach to international law. As a result, emerging countries like India have been unable to equally enforce international law.
The interests of powerful states are frequently reflected in international law. Even international law judgements can appear to be biased at times. To put it another way, judges are also people, and their personal feelings have an impact on their decisions. Their convictions are frequently influenced by worldwide public opinion in some way. As a result, it is impossible to guarantee that judges are free of prejudice before rendering a decision in a case. This fact, however, is controversial, as it raises questions about the impartiality of international law in deciding disputes.
Economic and human resource development gap in India and international standards
In 2005, approximately 24.3 per cent of India’s population earned less than US$1 (PPP, roughly US$0.25 in nominal terms) per day, down from 42.1 per cent in 1981. In India, 41.6 percent of the population (about 540 million people) lives below the new international poverty level of $1.25 (PPP) per day, down from 59.8 per cent in 1981. As of 2019, roughly 22 per cent of India’s population still lives below poverty. During pre-Covid. Around 35% rural population fell under the poor category, the number is expected to rise roughly to 381-418 million with the headcount ratio reaching a total of 50.9 – 55.87% in 2021-2021. In the backdrop of India’s departure from the International Covenant on Civil and Political Rights, in terms of compensation, India falls short of international standards. Fingers are being pointed at the nation’s democracy, in the absence of a basic right to compensation. Such violations of fundamental rights should not be tolerated in a democratic state and should be addressed.
India is a developing country. There is a significant disparity between India’s economy and world standards. Because India is lagging behind in the economic race, it impacts its approach to HRD. Increased population and poverty have resulted in a reduction in the value placed on human resources. There isn’t much being done to develop the country’s human resources. People are treated as if they were objects.
Lack of infrastructure
India lacks or even misses out on infrastructure, which is frequently disregarded. Deplorable infrastructure is not a new problem that the Indian judiciary is coping with. Infrastructure deficiencies are a factor that contributes to judicial delays and difficulty in obtaining justice. The user’s ability to navigate optimally is hampered by a lack of required support structures. As a result, court infrastructure is a critical factor in determining how well the law is implemented and how well litigants can accustom to and use the infrastructure offered.
Solutions for the better implementation of International Law in India
Despite its attempts to circumvent international law by refusing to ratify some treaties and conventions, India should work to better define the applicability of international law because it is continually evolving. A new legal framework is required for the improved execution of international law. The following are four possible solutions:
Applying existing laws as written in the Constitution Law and treaty law
The Constitution is the highest legal authority in the country. The Indian Constitution mandates that international law and international morality be given high priority in all aspects of Indian governance. The legislation for giving effect to the international agreements has been given under the Article 253 of the Constitution. The principle of pacta sunt servanda, which is codified in Article 26 of the Vienna Convention on the Law of Treaties and stipulates that “any treaty in force is binding upon the parties to it and must be performed by them in good faith”, is the cornerstone of treaty law. Treaty laws, however, are no longer binding as of August 2019, according to the Constitution. It is entirely up to Indian courts to decide whether or not to refer to international law. Given the rapid evolution of international law, relying solely on constitutional and treaty law would be inadequate.
Wherever the Indian Constitution conflicts with international law, it needs to be modified. When international law and domestic law clash, constitutional law becomes ineffectual and weak in executing international law. Domestic laws take precedence over international laws under the Constitution. Any international agreement that is consistent with the fundamental rights and in accordance with its spirit must be read into those provisions to expand their meaning and content and to advance the constitutional guarantee’s goal. Ignoring international law is not the answer; rather, revising the Constitution to make international law more accessible is the answer. However, altering the Constitution is a lengthy, difficult, and political process. It allows more options for implementing international law in the domestic system to be explored.
Citing treaties routinely
India has made a substantial contribution to international law. Because India is the world’s most populous democracy, it should take the lead in enforcing international law in domestic systems by citing treaties more frequently. International law establishes the legal obligations of governments in their interactions with one another and their treatment of individuals inside their borders and regulating the global commons. Countries join forces to create legally binding policies that benefit their citizens. India’s domestic system will be strengthened if it follows international law. When international law is consistent with domestic legislation, India has attempted to incorporate and apply it in several judgments and rulings.
International treaty law and international customary law have bolstered the applicability of various articles to strengthen India’s legal framework and position in the international community. The notion of systemic integration can be used by Indian judges to carry out integrationist interpretations of international law. As a result, Indian judges can become builders of the worldwide legal system’s consistency. The degree of systemic integration that is beneficial to the further development of international law might vary. As a result, it is recommended that Indian courts cite treaties more frequently, as this will strengthen Indian domestic laws.
Signing more treaties
International law, particularly international conventions, is founded on sovereign states’ will and assent. As a result, the proposed treaty must be adopted, applied, and implemented in national jurisdictions. If the treaty is to be truly effective, everyone stakeholder in the process must play a critical role. India’s ability to execute international law would improve as more accords are signed. It has been rather uncontroversial for local judges to apply foreign rules outlined in treaties. In general, ratification of a treaty is a legally significant act, and domestic courts should seek to hold national governments accountable for the legal obligations embodied in such ratification.
At the very least, once a treaty is signed, India will be committed to safeguarding the treaty’s interests, and local legislation can be enacted to support the pact. Treaties are also reliable indicators of international law content. The only exception is when a treaty is deemed to conflict with a peremptory international law norm, such as jus cogens. As a result, the pact is declared null and void. There are, however, a few absolute principles, such as the prohibition of genocide, slavery, piracy, and torture. As a result, it is uncommon for a treaty to be nullified, reinforcing the idea that consulting treaties for determining the content of international law is safe. The claim that a state may not accept even certain framework treaties, such as the Vienna Convention on the Law of Treaties, or framework and substantive obligation conventions, such as the Refugee Convention 1951 or the International Criminal Court established by the Treaty of Rome, is somewhat disturbing.
Signing as many treaties as possible is the most effective and efficient strategy to bridge the gap between international and domestic law. India should sign conventions and treaties, but it is hesitant to draft accords that limit this freedom and explicitly grant domestic courts judicial enforcement authority. It may be claimed that a vast number of states found joining or adhering to international treaties to be in their best interests, while only a few did not. It can also be demonstrated how India’s refusal to join such conventions has not prevented it from accepting certain “practical” commitments that are similar to, if not identical to, these instruments.
New legal document
Another option for improving international law implementation in India is to create a new legal instrument that defines a new legal framework expressly for international law implementation in India. The question of how and when international law should be used as persuasive authority in the context of Indian constitutional reasoning is both important and complicated. As the world has become increasingly globalised, the comparative usage of diverse bodies of law has expanded dramatically in recent years, and this trend shows no indications of slowing down. A group of academics could meet to discuss the issues raised by the inconsistency and ineffectiveness of international law in India, provide remedies, and formulate recommended legislation and guidelines to protect and develop international law. Retired judges, attorneys, and academics could form a group of scholars. They can work on issues like dodging international law when it conflicts with domestic law, as well as international law implementation.
International law and state practice are both continually changing. The much-vaunted values and norms of international law are then negotiated by state practice depending on perceived national interests. The link between international and domestic law in India is complex and ambiguous, as evidenced by Indian practice. India takes varying attitudes on international law adoption; at times it is willing to do so, at other times it is not. The Indian Constitution provides the foundation for the country’s domestic legal system to implement international treaty obligations. Furthermore, the Indian Government has sole authority to establish and enforce international treaties or accords.” The President of India has sole authority over the Indian government and is authorised to sign and approve international treaties. When there is no disagreement between them and there is a gap in domestic law, Indian courts will invoke international law. Better implementation, on the other hand, is possible. This article made four recommendations for improving the application of international law in the Indian legal system.
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