This article by Tejaswinee Roychowdhury, pursuing M.A. in business law from NUJS, Kolkata, discusses the international law.

Written while pursuing the NUJS MA in Business Laws. In this paper, I attempt to give the basic introduction to international law, visit its branches and concepts and examine them in relation to the municipal laws of India. It is well known that India is a signatory to most international conventions and treaties but there are no direct statutory provisions acknowledging the same. Therefore, for Indians to know all about international laws, it’s highly recommended to depend on the Constitution of India and various judicial pronouncements. Some Human Right statutes are direct reflections of Universal Declaration of Human Rights and we will visit that was well along with environmental law statues inspired by the various international conventions on the same.

INTRODUCTION

International Law is a concept that has developed over time through international relations and trade between various countries. The present-day international law owes its origin to Grotius, a learned Jurist and the “Father of International Law”, in his work De Jure Belli Ac Paces in 1625. Jeremy Bentham, an eminent British Jurist, used the term ‘international law’ for the first time in 1780. There is no single universally accepted definition of International Law. However, many jurists have attempted to define it.

Oppenheim – “Law of Nations or international law is the name for the body of customary and conventional rules which are considered legally binding by civilized States in their intercourse with each other.”

QUEEN V. KEYN [1], Lord Coleridge, C. J. – “The law of nations is the collection of usages which civilized States have agreed to observe in their dealings with one another.”

Starke – “International Law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and, therefore, do commonly observe in their relations with each other, and which includes also:

1. The rules of law relating to the functioning of international institutions/organizations, their relations with each other, and their relations with State and individuals; and
2. Certain rules of law relating to individuals and non-State entities so far as the rights and duties of such individuals and non-State entities are the concern of the international community.”

Therefore, international law is a body of norms, usages, rules and regulations, which is constantly evolving whilst being observed by the members of the international community to maintain a healthy relation with each other. These norms confer rights and impose obligations on the States, international organisations and to some extent, individuals.

 

The Present Scenario –

After the World War I, the countries collectively felt the need for international peace and security and this need was accelerated and reached greater heights after the abhorrent outcome of World War II. Today, international law is maintained and governed by the United Nations Organisations (UNO), organised in 1945. Prior to it, the League of Nations was organised in 1919 to observe and uphold international peace and security.

Therefore, if International Law was to be defined with respect to the present scenario, international law, is a body of norms, usages, rules and regulations, which is constantly evolving whilst being observed by the members of the international community to maintain a healthy relation with each other and uphold international peace and security.

BASIC TENETS OF INTERNATIONAL LAW

The basic tenets of International Law are the rules to look to when the international treaties or statutes do not provide an application. According to Professor Janis of the University of Connecticut Law School, “the basic notion is that a general principle of international law is some proposition of law so fundamental that it will be found in virtually every legal system. When treaties and customary international law fail to offer a needed international rule, a search may be launched in comparative law to discover if national legal systems use a common legal principle. If such a common legal principle is found, then it is presumed that a comparable principle should be attributed to fill the gap in international law.” [2]

According to Article 38 of the Statute of the International Court of Justice,

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

• International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
• International custom, as evidence of a general practice accepted as law;
• The general principles of law recognized by civilized nations;
• Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2) This provision shall not prejudice the power of the Court to decide a case ex aequo et bono (considerations of fair dealing and good faith), if the parties agree thereto (compromise, conciliation, etc., which may be independent of or even contrary to law).

As can be seen, these are not only the sources of International Law but also the principles on which they are based. An authoritative order of the use of the sources of international law is given in Article 38. Thus, the court is expected to apply the above sources in order in which they appear. [3]

Article 51 in Part IV (Fundamental Duties) of the Constitution of India provides –

“Promotion of international peace and security. – The State shall endeavour to

(a) promote international peace and security;

(b) maintain just and honourable relations between nations;

(c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and

(d) encourage settlement of international disputes by arbitration.”

Article 51 of the Constitution had its source and inspiration in the Havana Declaration of 30 November 1939.  The first draft (draft Article 40) provided: “The state shall promote international peace and security by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of International Law as the actual rule of conduct among governments and by the maintenance of justice and scrupulous respect for treaty obligations in the dealings of organized people with one another”. With the acceptance of amendments moved by Dr. Ambedkar, H.V. Kamath, Ananthasayanam Ayyangar and P. Subbarayan, draft Art. 40 was adopted by the Constituent Assembly in its present form as Article 51.  During the debate, all the speakers emphasized commitment of India to promoting International Peace and Security and adherence to principles of International Law and Treaty obligations. [4]

It is, thus, clear that the Indian Legal System expressly states that India and Indians will respect international relations and uphold international peace and security. Now, let us visit the basic principles of international law and study them in relation to the Indian legal system.

 

INTERNATIONAL CUSTOMS

According to the Article 38 of the Statute of the ICJ, the two requirements for the existence of customs include a sufficiently uniform State practice and the opinio juris (the belief that such a practice is obligatory). In the PACQUETE HABANA CASE [5], the U.S. Supreme Court examined the State laws and practices, treaties, writings of publicists evidencing usage, and decisions of court, and held that these materials uniformly proved existence of a valid customary rule giving immunity to small fishing vessels. Further, the ASYLUM CASE [6] shows that international law recognised the existence of a special custom or local custom. The S. S. LOTUS CASE [7] demonstrates that the opinio juris is essential to the creation of a new customary rule of international law. Further, a provision of a treaty may also generate a rule of customary international law, as held in the NORTH SEA CONTINENTAL SHELF CASE. [8] the RIGHT OF PASSAGE CASE [9] states that a treaty provision practised for a long time may become a custom. [10]

 

The Indian Practice

Indian Courts follow the English practice in this regard, believing that the international customary rules are ipso facto part of the Indian Law and do not require specific incorporation. [11] This is not just because India is a member of the UNO. This case took place in 1907 when the UNO was not in existence and neither was the League of Nations. However, during that time, laws of the sea were well in existence. They were more like customs followed by the States during trades. The exact words in the Judgment of ANNAKUMARU PILLAI V. MUTHUPAYAL AND ORS. [12] are as under –

“18. ..it is to be observed that having regard to the fact that the rule as to the territorial waters of a country is founded on the principle that a proper margin is absolutely necessary for the safety and convenience of every country bordering on the sea and having regard to the fact that the limit of a marine league was arrived at with reference to the shooting power of cannons in former times, while those now in use are of a much longer range; doubts have been raised as to the propriety of maintaining this any longer as the proper limit (Hall’s International Law; 4th Ed., p. 160). “In 1894 the Institute de droit International exhaustively discussed the question and there was no decision or opinion as to the necessity of giving a greater breadth to the Zone, a decided majority favouring a Zone 6 miles from low water mark as territorial for all purposes with the right in a neutral state to extend it in time of war to a distance from shore equal to the longest range of modern guns “. (Taylor’s International Public Law, p. 294; see also Hall’s International Law, p. 161, note.) But in the absence of a distinct international concert on the point, the ordinary limit of territorial waters in the open sea should, I presume, be taken to be that referred to above, subject perhaps to the qualification, according to the decision of the Supreme Court of the United States in Manchester v. Massachusetts 139 U.S. App. at p. 240 (already referred to), that ” all Governments for the purpose of self-protection in time of war or for the prevention of frauds on its revenue exercise an authority beyond this limit.””

These words not only prove the existence of customs followed by the trading States but also serve as a source for judicial decision. A State is a part of the international society and to live in harmony, it is ethical for the States to follow the customs which promote such harmony. There is, however, a question of whether domestic law or international law should be given preference in deciding questions of international law. This question was answered by Justice Chinnappa Reddy in GRAMOPHONE CO. OF INDIA LTD. V. B. B. PANDEY [13] in the following words –

“The comity of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction. If in respect of any principle of international law, the parliament says ‘no’, the national court cannot say ‘yes’. National court shall approve international law only when it does not conflict with national law. National courts being organs of the State and not organs of international law must perforce apply national law if international law conflicts with it.”

Thus, mere international customs are not absolute in their application to the Indian Legal System.

INTERNATIONAL TREATIES

In the modern era, international treaties are of utmost importance. Article 38 of the Statute of ICJ lists ‘international conventions whether general or particular, establishing rules expressly recognized by the contesting States’ as the first source of international law. ‘Convention’ implies treaties, conventions, protocols, agreements, etc. There are law-making treaties and there are treaty-contracts. Examples of law-making treaties include 1958 Geneva Convention on the Law of the Sea, Vienna convention on the Law of Treaties, 1969, etc. Treaty-contracts are usually between two or more States binding only them. A series or a recurrence of treaties laying down a similar rule may produce a principle of customary international law. [14]

Oppenheim states – “International treaties are agreements of a contractual character between States or organizations of States creating legal rights and duties.” Further, according to the Article 2 of the Vienna Convention, 1969 – “A treaty is an agreement whereby two or more states establish or seek to establish relationship between them governed by international law.” Article 3 further clarifies that international organisations may also conclude treaties. Lauterpacht stresses on the statement – “treaties are legally binding because there exists a customary rule of international law that treaties are binding.” The basis of the binding force of treaties is pacta sunt servanda meaning ‘States are bound to fulfil in good faith the obligations assumed by them under treaties’ (sanctity of contracts).

 

The Indian Practice

In India, constitutionally speaking, treaty-making is an executive act. Entry 14, List I read with Article 246 of the Constitution of India makes it crystal clear that the power to make laws with respect to implementation of international treaties rests with the Union Government. Article 253 further states – “Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the Territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any International Conference, Association or other body.” Article 53 vests the executive power of the Union with the President of India. Article 73 says that the executive power of the Union extends to exercising all powers accruing to the Government of India from any International Treaty or Agreement. [15]

Regarding international treaties and their implementation in India, there are two prevailing judicial attitudes. One attitude is that the treaties shall not be binding upon the courts unless there are incorporated and implemented by the legislature of India. The other attitude is opposed to this one where it is believed all treaties no dot necessarily require implementation by the legislature of India.

 

The First Attitude

According to this attitude, the treaties shall not be binding upon the courts unless there are incorporated and implemented by the legislature of India. In SHIV KUMAR SHARMA V. UOI [16], Justice S. K. Kapoor emulated this attitude in the following words –

“17. This then takes me to the other argument of the learned counsel for the petitioners that a treaty can be implemented only by legislation. Mr. Bobde referred us to Attorney-General for Canada v. Attorney-General for Ontario (1937) A. C. 326 :(AIR 1937 Pc 82), in support of this proposition. … It was observed- “Their Lordships, having stated the circumstances leading up to the reference in this case, are now in a position to discuss the contentions of the parties which were summarized earlier in this judgment. It will be essential to keep in mind the distinction between (1) the formation, and (2) the performance, of the obligations constituted by a treaty, using that word as comprising any agreement between two or more sovereign States. Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire by virtue of the treaty alone, have the force of law. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes.“

20. The position, to my mind, appears to be this that if a treaty either requires alteration of or addition to existing law, or affects the rights of the subjects, or are treaties on the basis of which obligations between the treaty-making State and its subjects have to be made enforceable in municipal Courts, or which, involves raising or expending of money or conferring new powers on the Government recognizable by the municipal Courts, a legislation will be necessary. Of course, if it involves cession of territory then so far as India is concerned constitutional amendment may also be necessary. It is not possible to prepare an exhaustive list as to which treaties can be implemented by legislation and I will not attempt to do so. There may be other treaties where implementation by law is necessary and therefore the Privy Council decision cannot be treated as an exhaustive statement of law on the subject. To my mind, one thing is, however, clear that where the implementation of a treaty merely involves the ascertainment of the disputed boundaries with a foreign State, no legislation would be necessary. Legislation in the instances mentioned heretofore is necessary because in India treaties do not have the force of law and consequently obligations arising there from will not be enforceable in Municipal Courts unless backed by legislation. Settlement of dispute as to boundary raises no such obligation requiring implementation in Municipal Courts, Cases may arise where a domestic law is in express terms extended to a named city and that city as a result of a treaty, settling a dispute like the present, has to be handed over to another country. In that case legislation may be necessary.”

This attitude was also taken up in MAGANBHAI V. UOI [17] and in JOLLY VERGHESE V. BANK OF COCHIN [18] where it was held – “The positive commitment of the State parties ignites legislative action at home but does not automatically make the covenant an enforceable part of the Corpus juris of India.” [19]

 

The Second Attitude –

According to this attitude, it is believed all treaties no dot necessarily require implementation by the legislature of India. For instance, where cessation of territory is required in an agreement, legislative enactment would be necessary. This attitude was adopted by the Supreme Court in BERUBARI UNION CASE NO. 1 [20] where it was held by Justice Gajendragadkar that Constitutional Amendment is necessary to give effect to the Indo-Pak Agreement on the Berubari Union, in the following words –

“34. What then is the nature of the treaty-making power of a sovereign State? That is the next problem which we must consider before addressing ourselves to the questions referred to us for our opinion. As we have already pointed out it is an essential attribute of sovereignty that a sovereign state can acquire foreign territory and can, in case of necessity, cede a part of its territory in favour of a foreign State, and this can be done in exercise of its treaty-making power. Cession of national territory in law amounts to the transfer of sovereignty over the said territory by the Owner-State in favour of another State. There can be no doubt that such cession is possible and indeed history presents several examples of such transfer of sovereignty. It is true as Oppenheim has observed that “hardship is involved in the fact that in all cases of cession the inhabitants of the territory who remain lose their old citizenship and are handed over to a new sovereign whether they like it or not” (Oppenheim’s “International Law” – by Lauterpacht, Vol. I, p. 551 (8th Ed.)); and he has pointed out that “it may be possible to mitigate this hardship by stipulating an option to emigrate within a certain period in favour of the inhabitants of ceded territory as means of averting the charge that the inhabitants are handed over to a new sovereign against their will” (p. 553). But though from the human point of view great hardship is inevitably involved in cession of territory by one country to the other there can be no doubt that a sovereign state can exercise its right to cede a part of its territory to a foreign state. This power, it may be added, is, of course, subject to the limitations which the Constitution of the state may either expressly or by necessary implication impose in that behalf; in other words, the question as to how treaties can be made by a sovereign State in regard to a cession of national territory and how treaties when made can be implemented would be governed by the provisions in the Constitution of the country. Stated broadly the treaty-making power would have to be exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it. Whether the treaty made can be implemented by ordinary legislation or by constitutional amendment will naturally depend on the provisions of the Constitution itself. We must, therefore, now turn to that aspect of the problem and consider the position under our Constitution.

35. In dealing with this aspect we are proceeding on the assumption that some legislation is necessary to implement the Agreement in question. It is urged on behalf of the Union of India that if any legislative action is held to be necessary for the implementation of the Agreement a law of Parliament relatable to Art. 3 of the Constitution would be sufficient for the purpose; and if that be so, there would be no occasion to take any action under Art. 368 of the Constitution.
36. We have already held that the Agreement amounts to a cession of a part of the territory of India in favour of Pakistan; and so its implementation would naturally involve the alteration of the content of and the consequent amendment of Art. 1 and of the relevant part of the First Schedule to the Constitution, because such implementation would necessarily lead to the diminution of the territory of the Union of India.”

The Court followed the American Practice regarding the distinction between ‘self-executing’ and ‘non-self-executing treaties’ in MAGANBHAI ISHWARBHAI PATEL V. UOI [21] as per Justice Shah –

“(i) The Constitution of India makes no provision making legislation a condition of the entry into an international treaty in times of war or peace. The executive is qua the State competent to represent the State in all matters international and may incur obligations which in International Law are binding upon the State. There is a distinction between the formation and the performance of the obligations constituted by a treaty. Under the Constitution the obligations arising under the agreement or treaties are not by their own force binding upon Indian nationals or others. The power to legislate in respect of treaties lies with the Parliament and making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the State.  If the rights of the citizens and others which are justiciable are not affected, no legislative measure is needed to, give effect to the agreement or treaty. [299 D-F] The Parliament Belge, [1879] 4 P.D. 129, Walker v.  Baird, [1892] A.C. 491 and Attorney-General for Canada v. Attorney- General for Ontario, [1937] A.C. 326, referred to. The argument that power to make or implement a treaty agreement or convention can only be exercised under authority of law proceeds upon a misreading of Art. 253. The effect of Art. 253 is that if a treaty agreement or convention with a foreign State deals with a subject matter within the competence of the State Legislature, the Parliament alone has, notwithstanding Art. 246(3) the power to make, laws to implement the treaty agreement or convention. In terms the Article deals with legislative power; thereby power is conferred upon the Parliament which it may not otherwise possess.  But it does not seek to circumscribe the extent of the executive power conferred by Art. 73; the exercise of this power must be supported by legislation only if in consequence of the exercise of the power, rights of citizens or others are restricted or infringed or laws are modified. [299 G-300 C]”

Similarly, the Supreme Court held in BIRMA V. STATE [22] and in NANKA V. GOVT. OF RAJASTHAN [23] that in case of extradition treaties which entail infringement of constitutional rights to life and liberty under Article 21 of the Constitution, legislative action is necessary. [24]

 

BRANCHES OF INTERNATIONAL LAW

The branches of international law are quite diverse. We will only discuss those branches that have in some way influenced Indian legislations and judicial decisions.

 

STATE RECOGNITION

According to Philip Jessup, “recognition means that an existing State acknowledges the political entity of another State, by overt or covert act.” It is important to know what constitutes a State. According to the Montevideo Convention, 1933, a ‘State’ should possess four qualifications – permanent population, definite territory, government and capacity to enter into relation with other states (sovereignty). Jessup further says, “very often recognition is said to be apolitical diplomatic function.” Recognition may be express or implied, conditional or pre-mature. The two modes of recognition are – de facto recognition (provisional and temporary recognition) and de jure recognition (formal recognition).

 

The Indian Practice

India conforms to the international practice of state recognition. When it came to recognizing the Statehood of various States, India had accorded recognition as soon as the conditions of Statehood had been fulfilled. As a matter of prevailing strategy, India attached primacy to de facto recognition. For instance, India was the first State to recognize Bangladesh and this recognition was on a de facto basis. India is generally known for recognizing de facto.

Another prominent characteristic of the recognition policy of India is that it has adopted the broader version of Stimson Doctrine. According to Wikipedia, “the Stimson Doctrine is a policy of the United States federal government, enunciated in a note of January 7, 1932, to Japan and China, of non-recognition of international territorial changes that were executed by force. The doctrine was an application of the principle of ex-injuria jus non-oritur.” [25] Thus, India has, strategically, denounced illegal territorial acquisitions and unlawful governments. By recognising Israel in 1950 and not establishing any diplomatic relations whatsoever till 1992, India proved that she marks a clear line of distinction between recognition as a legal act and recognition as a political act. The recognition of Palestine Liberation Organisation (PLO) affirms India’s strong commitment to the principle of self-determination and its long-standing support to national liberation movements. [26]

LAW OF THE SEA

The law of the sea evolved around the times of Grotius, i.e., it evolved during the very inception of the concept of international law. The law of the sea owes its origin to the age old system of trading via and on the high seas. The laws were observed as customs by the various States. However, there were a lot of conflicts. To resolve them, the two U.N. Conferences on the Law of the Sea were held in Geneva in 1958 and 1960. In the 1958 Geneva Conference on the Law of the Sea, four conventions were adopted – (i) Convention on the Territorial Sea and Contiguous Zone, (ii) Convention on the High Seas, (iii) Convention on Fishing and Convention of Living Resources, and (iv) Convention on the Continental Shelf. However, problems persisted which led to the Third U.N. Conference on the Law of the Sea, the longest known convention in the history of international law. The matters on which laws of the sea were made are – breadth of territorial sea, rights of States over territorial sea, contiguous zone, continental shelf, exclusive economic zone, and hot pursuit (right of search and seizure on high seas).

 

The Indian Practice

BREADTH OF TERRITORIAL SEAS – Under Section 3 of the Indian Maritime Zones Act, 1976, the position is the same as in the 1982 U.N. Convention’s Articles 3, 5 and 7. According to Art. 3 of the Convention, every State has the right to establish the breadth of its territorial sea upto a limit not exceeding 12 nautical miles, measured from the baseline determined in accordance of the Convention. Art. 5 states that the ‘normal baseline’ for measuring the breadth of the territorial sea is the low-water line along the coast and in case of geographical complications, it is legitimate to depart from that standard and link outermost baselines by straight lines. Art. 7 states that a straight baseline system can be applied in case of geographic, economic and historic considerations. [27]

RIGHTS OF STATES OVER TERRITORIAL SEA – Indian position with respect to ‘right of innocent passage’ is the same as in the 1982 Convention. This is in conformation with the Articles 17, 18, 19, 20 and 23 of the 1982 U.N. Convention. Section 4 Para. 2 of the Indian Maritimes Zones Act, 1976 equates warships with submarines and underwater vehicles and enacts that such ships/vehicles can only pass through Indian territorial waters after giving prior notice to the Central Government of India. [28]

CONTIGUOUS ZONE – Contiguous zone is that part of the sea which is beyond and adjacent to the territorial waters of a coastal State. India in Section 5 of the Indian Maritimes Zones Act, 1976 also adheres to the 24 nautical miles’ rule as in the Article 33 of the 1982 U.N. Convention. In contradistinction to the Convention, security of the State is enumerated as one of the areas where India may exercise control. The inclusion of ‘security’ in amongst the purposes of contiguous zone widens the authority of the Indian Government over foreign ships in the contiguous zone. [29]

CONTINENTAL SHELF – The continental shelf is the extension of the land territory beneath the sea. The Indian definition of Continental Shelf (u/Section 6 of the Indian Maritime Zones Act, 1976) is substantially the same as under the Article 1 of the U. N. Convention [30], except that it indicates some illustrative examples of India’s sovereign rights over the continental shelf which include: (i) rights of exploration, exploitation, conservation and management of all resources, (ii) right to construct and maintain artificial islands, offshore terminals, etc., (iii) right to scientific research, and (iv) right to protect marine environment and control marine pollution. As to delimitation of the continental shelf, Section 9 of the Indian Maritime Zones Act, 1976, provides that maritime boundaries should not extend beyond the equidistance line, in the absence of any agreement between parties. [31]

EXCLUSIVE ECONOMIC ZONE (EEZ) – Section 7 of the Indian Maritime Zones Act, 1976 also adopts the 200 nautical miles EEZ as provided in the Article 57 of the 1982 U.N. Convention. However, the limit of EEZ may be altered in India, after having regard to international limit of EEZ, by notification in the Official Gazette. The notification should be mandatorily ratified by both Houses of the Parliament. Section 7 further provides the rights of India in her EEZ. These rights are similar to those provided in the 1982 U.N. Convention, except some very minor variations. The Central Government is empowered to declare any area of the EEZ to be a “designated area”. The Maritime Zones of India (Regulation of Fishing of Foreign Vessels) Act, 1981, provides for the regulation of fishing by foreign vessels in the maritime zones of India. There is no such provision in the 1982 U.N. Convention. [32]

HOT PURSUIT – The right of hot pursuit is a part and parcel of the right to search and seizure on high seas. The general rule is that the State whose flag the ship is flying has complete jurisdiction over the ship. But this exclusive jurisdiction is subject to the exception of the right of hot pursuit. [33] The right of hot pursuit was broadly agreed to in the League of Nations Codification Conference, 1930 while hot pursuit on territorial waters was codified through the Article 23 of the Geneva Convention on the High Seas in 1958. [34] International law recognizes the right of hot pursuit on the basis that a coastal State cannot be expected to allow a foreign ship to evade its jurisdiction by escaping into the high seas. Art. 111 of the 1982 U.N. Convention states that such pursuit may only be continued outside the maritime zones of a State if the pursuit has not been interrupted. The position in India is the same as recognised in international law, except for the fact the India also recognizes the right to hot pursuit in illegal fishing. [35]

 

HUMAN RIGHTS LAW

The concept of human rights, imposing a responsibility on the State to respect and protect these rights, is largely a post-1945 (World War II) phenomenon, which saw the establishment of the United Nations (U.N.). The U.N. is the modern nidus of human rights in their rich diversity. The protection of human rights under the United Nations consists of the following – (i) United Nations Charter, (ii) Universal Declaration of Human Rights, 1948 (UDHR), (iii) International Covenant on Civil and Political Rights, 1966 (ICCPR), and (iv) International Covenant on Economic, Social and Cultural Rights, 1966 (ECOSOC). The enforcement of human rights is something very essential. The U.N. Machineries governing enforcement are – (i) U.N. Commission on Human Rights, (ii) various committees under the Covenants including the Optional Protocol, (iii) various procedures under the other general Conventions on Human Rights, such as, the Commission of Inquiry under ILO Constitution, (iv) procedures under Conventions relating to women such as CEDAW, and (v) recent measures for enforcement including U.N. Fund for Human Rights, U.N. Commissioner for Human Rights, Vienna World Conference on Human Rights proposing the post of High Commissioner for Human Rights. [36]

 

The Indian Practice

In India, the heritage of human rights may be traced to the Constitution of India itself. The U.N. Charter and the UDHR influenced Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) read with the Preamble of the Indian Constitution. While Part III reflects the ICCPR, Part IV and the Preamble reflect the concerns under ECOSOC. Part IV-A (Fundamental Duties) venture further into ecological and environmental justice, gender justice and jurisprudence of compassion and common brotherhood. India became a party to both the international Covenants by ratifying them on March 27, 1979, but it has not ratified the Optional Protocol I to the ICCPR, which allowed the individuals to petition against the State to the Human Rights Committee. [37]

According to Justice V.R. Krishna Iyer [38], “Textually, we have a Constitution which is fragrant with humanism, socialism, democracy, people-oriented mandates with a benign slant towards the suppressed human sector and a developed paradigm committed to abolition of poverty and promotion of have-nots to a status of equality. For a variety of reasons, the Indian State has committed itself to the essentials of the International Bill of Human Rights.”

Some of the human rights proclaimed under the UDHR, ICCPR and ECOSOC have been specifically enumerated in the Constitution, such as – Right to life and liberty; Right to equality; Freedom of expression, movement, association, etc.; Freedom to carry on any occupation, trade, etc.; Freedom of religion; Right against ex post facto laws; Right to equal pay for equal work; Right to education; Protection of children and young persons; Right to livelihood; Rights of workers, etc. Some human rights, on the other hand, have not been specifically enumerated but they have been recognized by the Supreme Court as a part of existing fundamental rights, such as – Right to go abroad; Right to legal aid; Right to speedy trial; Right to privacy; Right of prisoners to be treated with Humanity; right to know; right to shelter; Right to compensation for violation of human rights, etc. [39] Some of the important judicial decisions can be discussed as under.

1. ADM JABALPUR V. SHUKLA [40] – The Supreme Court held –

“If two constructions of the Presidential order were possible, the court should lean in favour of a view which does not result in such consequence. The construction which does not result in such consequences is not only possible, it is also pre-eminently possible. Equally well established is the rule of construction that if there be a conflict between the municipal law on one side and the international law or the provisions of any treaty obligations on the other, the courts would give effect to municipal law. If, however, two constructions of the municipal law are possible, the court should lean in favour of adopting such construction as would make the provisions of the municipal law to the in harmony with the international law or treaty obligations. While dealing with the Presidential Order under Art. 359(1) such a construction should be adopted as would, if possible, not bring it in conflict with the above Articles 8 and 9 of U.N Charter.

…According to Article 51 our Constitution, the State shall endeavour to inter alia foster respect for international law and treaty obligations in the dealings of organised peoples with one another. Relying upon that article, Sikri CJ. Observed in the case of Kesavananda Bharathi v. State of Kerala (1):

“It seems to me that, in view of Art. 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India.”

Articles 8 and 9 of the Universal Declaration of Human Rights in respect of which resolution was passed by the United Nations and was supported by India read as under:

‘ARTICLE 8 – Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

ARTICLE 9 – No one shall be subjected to arbitrary arrest, detention or exile.’ While dealing with the Presidential order under article 359(1), we should adopt such a construction as would, if possible, not bring it in conflict with the above articles 8 and 9. From what has been discussed elsewhere, it is plain that such a construction is not only possible, it is also pre-eminently reasonable. The Presidential order, therefore, should be so construed as not to warrant arbitrary arrest or to bar right to an effective remedy by competent national tribunals for acts violating basic right of personal liberty granted by law.”

1. FRANCIS CORALIE V. ADMIN., UT OF DELHI [41] – The Supreme Court held –

“…there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights.”

1. VISHAKHA V. STATE OF RAJASTHAN [42] – The Supreme Court held –

“In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and enabling power of the Parliament to enact laws for implementing the International Conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till the parliament enacts to expressly provide measures needed to curb the evil.

Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. Governance of the society by the rule of law mandates this requirement as a logical concomitant of the constitutional scheme. The exercise performed by the Court in this matter is with this common perception shared with the learned Solicitor General and other members of the Bar who rendered valuable assistance in the performance of this difficult task in public interest.

… Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance. The International Conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose.”

This case eventually resulted in the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

1. DK BASU V. STATE OF WEST BENGAL [43] – The Supreme Court held –

““Custodial violence” and abuse of police power is not only peculiar to this country, but it is widespread. It has been the concern of international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1948, which market the emergency of worldwide trend of protection and guarantee of certain basic human rights, stipulates in Article 5 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Despite the pious declaration, the crime continues unabated, though every civilised nation shows its concern and takes steps for its eradication.”

There are various Legislations relating to human rights in India. Some of the significant ones can be enlisted as under –

• The Immoral Traffic (Prevention) Act, 1956
• The Dowry Prohibition Act, 1961 (28 of 1961) (Amended in 1986)
• The Indecent Representation of Women (Prohibition) Act, 1986
• The Commission of Sati (Prevention) Act, 1987 (3 of 1988)
• Protection of Women from Domestic Violence Act, 2005
• The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
• The Workmen’s Compensation Act, 1923
• The Trade Unions Act 1926
• The Child Marriage Restraint Act, 1929 (19 of 1929)
• The Payments of Wages Act, 1936
• The Payments of Wages (Procedure) Act, 1937
• The Minimum Wages Act, 1948
• The Employees’ State Insurance Act,1948
• The Factories Act, 1948
• The Minimum Wages Act, 1950
• The Protection of Civil Rights Act 1955
• The Maternity Benefit Act, 1961 (53 of 1961)
• The Beedi & Cigar Workers (Conditions of Employment) Act, 1966
• The Equal Remuneration Act, 1976
• The Bonded Labour System (Abolition) Act, 1979
• Mental Health Act, 1987
• National Commission for Women Act, 1990(20 of 1990)
• The Protection of Human Rights Act, 1993 [As amended by the Protection of Human Rights (Amendment) Act, 2006–No. 43 of 2006]
• Juvenile Justice Act, 2000
• The Child Labour (Prohibition & Regulation) Act
• The Pre-Natal Diagnostic Techniques (Regulation and Prevention of misuse) Act 1994
• Medical Termination Pregnancy Act, 1971
• National Policy for the Empowerment of Women, 2001

 

ENVIRONMENTAL LAW

Environmental Law finds a place in international law as well. Environmental law has grown as a separate area of public international law since the 1970s with the Stockholm Conference, 1972. Today, it is one of the fastest growing areas of international law. Current issues of international concern covered by environmental law include ozone layer depletion and global warming, desertification, destruction of tropical rain forests, marine plastics pollution from ships, international trade in endangered species (i.e. ivory trade), shipment of hazardous wastes to Third World countries, deforestation of Brazil and the Philippines, protection of wetlands, oil spills, transboundary nuclear air pollution [44], dumping of hazardous wastes, groundwater depletion, international trade in pesticides, and acid rain. Environmental law is also cutting across other areas of international law, such as commercial/business law, trade, and human rights. International cooperation in the form of treaties, agreements and resolutions created by inter-governmental organizations are being used to protect the environment. The major organizations concerned with protection of the environment are the United Nations Environment Programme (UNEP), the European Union, the OECD, and the Council of Europe. Since ultimate responsibility for the protection of the environment remains with the State, municipal laws and regulations related to the environment are essential. [45]

 

The Indian Practice

The Constitution of India imposes the duty on both the state and the citizens to protect the environmental laws in the same way as provided for in the Stockholm Declaration, OECD, UNEP, Agenda 21, etc. Article 48A of the Constitution of India states that it is the duty of the State “to protect and improve the environment and to safeguard the forests and wildlife of the country.” Article 51A (g) of the Constitution of India states – it is the fundamental duty of every citizen “to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.”

Article 21 of the Constitution of India provides the right to life which includes the right to a healthy life as mentioned by the Supreme Court in numerous judgements. For instance, the Supreme Court in SUBHASH KUMAR V. STATE OF BIHAR [46] held –

“Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art. 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.”

Similar was the opinion of the Supreme Court in MC MEHTA V. UNION OF INDIA. [47]

Further, the Eleventh Schedule of the 73rd Constitutional Amendment in 1992 empowers the Panchayat and other local bodies to make regulations on soil conservation, water management, watershed development, social and farm forestry, drinking water, fuel and fodder, non-conventional energy sources and maintenance of community assets. Similarly, the 74th Constitutional Amendment in 1992 empowers the local bodies to promote the ecological effects of the environment.

In India, there are six laws related to environmental protection and wildlife, which are:

• The Environment (Protection) Act, 1986
• The Forest (Conservation) Act, 1980
• The Wildlife Protection Act, 1972
• Water (Prevention and Control of Pollution) Act, 1974
• Air (Prevention and Control of Pollution) Act, 1981
• The Indian Forest Act, 1927

All of these are influenced by the international conventions and treaties on environmental protection.

 

INTELLECTUAL PROPERTY LAW

The importance of framing some sort of an internationally recognised agreement for co-operation among the nations for the protection of intellectual property was realised as early as the year 1883 when the Paris Convention for protection of industrial property came into existence. The TRIPS Agreement (Trade Related Aspects of Intellectual Property Rights) has adopted the provisions of the Paris Convention. The Paris Convention dealt with patents, trademarks, designs and utility models but not with copyright. The Berne Convention of 1886 was the first international convention on copyright. In the year 1947 the General Agreement on Tariffs and Trade (GATT) came into existence. During the 1980’s multinational corporations and international agencies began showing interest in intellectual property as an area of discussion in the GATT. In the 1986 Uruguay Round finally the GATT was concluded which gave rise to the WTO Agreement, TRIPS being one of them. [48] Some of the other treaties and conventions dealing with intellectual property are –

• Washington Treaty on Intellectual Property in respect of Integrated Circuits, 1989
• Trade Mark Law Treaty, 1994
• Patent Co-operation Treaty, 1970
• Budapest Treaty on International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedure, 1977
• Madrid Agreement concerning the International Registration of Marks, 1891
• Locarno Agreement establishing an International Classification for Industrial Designs, 1968

 

The Indian Practice

India was not a member of the Paris Convention and so she was not obligated to it. However, India was a signatory to the TRIPS, WTO Agreement and the Berne Convention along with the other conventions and treaties mentioned above. While the laws on trademarks, copyrights, designs are almost in conformity with the TRIPS Agreement, patent laws in India are an area of concern demanding massive changes and amendments so as to facilitate the international community to have successful trade relations with India. [49] The legislations on intellectual property in India are –

• The Copyright Act 1957
• The Patents Act 1970
• The Trademarks Act 1999
• The Semiconductor Integrated Circuits Layout-Design Act, 2000
• The Geographical Indications of Goods (Registration and Protection) Act, 1999
• The Designs Act, 2000
• Protection of Plant Varieties and Farmers’ Rights Act, 2001
• The Biological Diversity Act, 2002

 

CYBER LAW

Cyber Law intends to battle cybercrime on an international level aided by the national levels. Convention on Cybercrime (Budapest Convention on Cybercrime / Budapest Convention), is the first international treaty which globally addresses cybercrime by harmonizing national laws, improving investigative techniques, and increasing cooperation among nations by focusing on fraud, child pornography, cyber terrorism, hate crimes, etc. [50] The Additional Protocol to the Convention on Cybercrime which came into force on 1st March, 2006, seeks to criminalize racism, xenophobic comments and behaviours, and the related insults and threats through computer systems and internet.

 

The Indian Practice

India has ratified the above treaty. Information Technology Act of 2000 deals with cyber law and cyber crimes in India. There are offences and punishments listed in the Act. The offences are related to the Indian Penal Code as well [51] and are governed by the CrPC and the Evidence Act. Recently, the International Conference on Cyberlaw, Cybercrime & Cybersecurity 2016 was organized by Cyberlaws.Net and Pavan Duggal Associates, Advocates on 17th & 18th November, 2016 at New Delhi, India. [52] It was supported by the Ministry of Electronics & Information Technology, UNODC, Interpol, Council of Europe, amongst others.

 

LAW OF ARBITRATION AND INSOLVENCY

Both international arbitration and insolvency is highly dependant on the UNCITRAL Models. Though the two may seem like two distinct branches, they are best seen together. This is because the best way to resolve disputes on international insolvency is through arbitration, which to handle international insolvency needs to be drafted in an international essence. Both these laws fall flat without independent domestic legislations as they are co-dependant. The UNCITRAL merely sets the rules which should govern the domestic laws on insolvency and arbitration.

The UNCITRAL Model Law on International Commercial Arbitration 1985 and the UNCITRAL Arbitration Rules 1976 deal with international arbitration. The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the “New York Convention”) and the International Centre for the Settlement of Investment Disputes (ICSID) also handle international arbitration.

International Insolvency, on the other hand, is handled by the UNCITRAL Model Law on Cross-Border Insolvency 1997, and the EC Regulation on Insolvency Proceedings 2000.

The Indian Practice

The Indian law of arbitration is contained in the Arbitration and Conciliation Act 1996. The Act is based on the 1985 UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Arbitration Rules 1976.

The Indian law of insolvency was previously governed by the Presidency Towns Insolvency Act, 1909 (Applicable to Mumbai, Kolkata & Chennai) and The Provincial Insolvency Act, 1920 (Applicable to Rest of India). Then they came to be governed by the SARFAESI Act, Sick Industrial Companies Act, Companies act, Payment and Settlement Systems Act, Limited Liability Partnership Act, Indian Partnership Act, Central Excise Act, Customs Act, Income Tax Act, and Recovery of Debts Due to Banks and Financial Institutions Act. [53] Today, it is comprehensively governed by the Bankruptcy and Insolvency Code, 2016 and it is based on the UNCITRAL Model.

 

CONCLUSION

(INTERNATIONAL LAW VERSUS MUNICIPAL LAW)

On the one hand, municipal law strengthens international law and makes it operative by incorporating it into national law by legislation, while, on the other hand, international law exerts a definite check upon municipal law and holds the States responsible or liable for their failure to perform international obligations. [54] The question that arises is – what do the countries do when there is a conflict between their domestic laws and the international law?

Like British and American Courts, Indian Courts also attribute primacy to municipal law if it is clear and unambiguous. In case of ambiguity, Indian courts follow the doctrine of harmonious construction to avoid conflict between the two, as has been seen in all the cases referred to in the entire paper. In the case of treaties, India follows Britain (as mentioned above). [55]

FOOTNOTES AND CITATIONS

[1] 2 Ex. D. 63 (1876)

[2] James G. Apple, Co-Editor of the International Judicial Monitor and President, International Judicial Academy, American Society of International Law and the International Judicial Academy, Jul/Aug 2007, Volume 2, Issue 2

(http://www.judicialmonitor.org/archive_0707/generalprinciples.html)

[3] Subhash C. Kashyap, The constitution of India and International Law’, Bimal N. Patel (ed.), ‘India and International Law’, Martinus Nijhoft Publishers, Leiden 2005, p.19. (cited by Jagadish S. Halashetti in http://www.legalindia.com/the-status-of-international-law-under-the-constitution-of-india/)

[4] Ashok K. Jain, Law Guide for Judicial Service Examinations, Vol. II, Ascent Publications (Delhi), 4th Ed., Re-print 2015.

[5] 175 U.S. 677 (1900)

[6] Asylum Case (Colombia v Peru), [1950] ICJ Rep 266 at 276-78

[7] Permanent Court of Int’l Justice, P.C.I.J. (ser. A) No. 10 (1927)

[8] (1969) ICJ Rep. 3

[9] Portugal v India, [1960] ICJ Rep 6

[10] Ibid 4

[11] Annakumaru Pillai v. Muthupayal and Ors., ILR 1907 Mad 551

[12] Ibid 11

[13] AIR 1984 SC 667

[14] Ibid 4

[15] Jagadish S. Halashetti, The Status of International Law under the Constitution of India (http://www.legalindia.com/the-status-of-international-law-under-the-constitution-of-india/)

[16] AIR 1968 Del 64

[17] AIR 1969 SC 783

[18] AIR 1980 SC 470

[19] Ibid 15

[20] AIR 1960 SC 845

[21] AIR 1969 SC 783

[22] AIR 1951 Raj 127

[23] AIR 1951 Raj 153

[24] Ibid 4

[25] https://en.wikipedia.org/wiki/Stimson_Doctrine

[26] Ibid 4

[27] Anglo-Norwegian Fisheries Case (1951 I.C.J. Rep. 116); Ibid 4

[28] Corfu Channel Case (15 XII 49, I.C.J. Reports 1949, p. 244; General List No. 1); Ibid 4

[29] Ibid 4

[30] Article 1 of the 1982 U.N. Convention incorporates the concept of continental shelf highlighted in the North Sea Continental Shelf Case (1969) ICJ Rep. 3

[31] Ibid 4

[32] Ibid 4

[33] Ibid 4

[34] Tejaswinee Roychowdhury, The Doctrine of ‘Hot Pursuit’ in International Law: Its Legality and Application in the 21st Century, LetsPedia (http://letspedia.com/doctrine-hot-pursuit-international-law-legality-application-21st-century/)

[35] Ibid 4

[36] Ibid 4

[37] Ibid 4

[38] Human Rights in India, p. 270

[39] Ibid 4

[40] AIR 1976 SC 1207

[41] AIR 1981 SC 746

[42] AIR 1997 SC 625

[43] (1997) 1 SCC 416

[44] EP v. Council (“Chernobyl”) (Case C-70/88) 1990

[45] International Environmental Law Research Guide, Georgetown University Law Library (http://guides.ll.georgetown.edu/InternationalEnvironmentalLaw)

[46] (1991) 1 SCC 598

[47] 1987 SCR (1) 819

[48] B.L. Wadhera, Preface to the First Ed., Law Relating to Intellectual Property, Universal Law Publishing Co. (New Delhi)

[49] Ibid 48

[50] https://en.wikipedia.org/wiki/Convention_on_Cybercrime

[51] For instance, the offence of ‘voyeurism’ through the internet such as Skype will be punishable u/S 354C of the IPC

[52] http://cyberlawcybercrime.com/

[53] Siddharth Gossain, Key Highlights of the Bankruptcy and Insolvency Code, 2016, LetsPedia (http://letspedia.com/key-highlights-bankruptcy-insolvency-code-2016/)

[54] Ibid 4

[55] Ibid 4

 

DATABASE FOR QUOTED INDIAN CASE LAWS AND JUDGMENTS

All quoted judgments of India are quoted from Indian Kanoon (https://indiankanoon.org/) website.