– Abul Kalam Azad Sulthan, Advocate, High Court of Judicature at Madras and Madurai Bench of Madras High Court & Partner, Spicy Law LLP.

Introduction:

This article will discuss about the treaties entered into by India, whether those are binding on our country, the difference between binding and non-binding treaties[1], the difference between MOUs and Treaties, and finally about the enforcement of obligations. International treaties are entered between two or more nation-states or between nation-states and intergovernmental organizations. Most of the intergovernmental organizations were established by treaties entered into by two or more nation-states to achieve a particular goal. (Example: NATO, etc)

Treaty:

Treaty is an agreement under International Law entered into by two or more nation-states or  between nation-states and international (intergovernmental) organizations. Treaty is also called as International agreements, protocols, conventions, pact and covenant. Based on the nature of treaty, it can be classified as Binding and Non-Binding treaties. Based on the number of countries ratified the treaty, the treaties can be classified as Bilateral treaties and Multilateral Treaties. If the treaty is between two parties (two states or two intergovernmental organizations or between a state and intergovernmental organization), it is called as Bilateral treaties[2]. If there are several countries (or Intergovernmental Organizations) participating in the treaty, such treaties are called as Multilateral treaties. There is some important aspect to consider while classifying a treaty as either Bilateral or Multilateral. Some treaties may have more than two signatory countries, but still those are considered as Bilateral Treaty. For Example: The treaty between Switzerland and European Union. In this treaty there are more than two parties (Switzerland and several states of European Union), but still it is considered as Bilateral. Because it is considered to be between two groups, Switzerland as one part and European Union and its member states as another part. All treaties must be registered with the United Nations Treaty Collection under Article 102 of the United Nations Charter. Once registered, the UNTC will allocate a registered number for the treaty. (For Example: United Nations Treaty Series UNTS 49006/49007[3] is the treaty that established Euclid IGO).

Relationship between International Law and State Law

International law is a new concept of human history. State law (Municipal law) means the internal law of a sovereign state. International law and state law (municipal law) are two separate legal orders, existing independently of one another. A state law cannot act as International law, but International law can act as municipal (state) law in certain circumstances. State law has binding force within its territories of a sovereign state. But in certain circumstances, International law may not have such binding force, unless and until the sovereign state incorporates it in its state law.[4] Due to this, there can be controversy about whether the relations between these two laws are relations of coordination between self-existent independent orders or relations of subordination of the one to the other, or of the other to the one. Or again whether they are part of the same order but both subordinate to a superior order.

It is necessary that they should both be purporting to be, and in fact be applicable in the same field, that is, to the same set of relations and transactions. Harris says “International law is a law of coordination, but not subordination. It is usually regarded as a law between, but not above several states.”

Indian Practice

Principally, Indian practice regarding the relationship between International Law and Internal law was emanated from British practice. From the beginning, Britain distinguished the customary rules of International Law and the rules laid down by treaties.[5] This was India’s pre-constitution situation.

After Indian Constitution was framed, India adopted the practice of adopting everything in accordance with Indian Constitution. In fact, the Indian Constitution framers had been inspired with the Charter of United Nations Organization.[6] This has been reflected in Indian Constitutions’  Preamble, Part- I to Part- IV especially.

Article 51[7] of Constitution of India provides as follows:

Article 51. Promotion of International Peace and Security:-

The state shall endeavor to:-

Promote international peace and security;

Maintain just and honorable relations between nations;

Foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and

Encourage settlement of international disputes by arbitration.

Article 51 of Constitution of India reflects India’s State Policy and Practice regarding the relationship between the International Law and Municipal Law (State Law concerned to India).

Article 51 ( c ) stresses on “pacta sunt servanda” principle[8]. Article 51 (b) and (d) explain how the relationship between India and other countries shall be maintained.  Article 51 (a) provides that India is a peace-loving country, and it should promote International Peace and Security.

Article 51 is incorporated in Part – IV of the Constitution of India which is “Directive Principles of State Policy” which are not enforceable in a Court of Law.

Article 372 (1) of Constitution of India provides that the laws, which were existed at the time of the adoption of Constitution, shall continue in force and shall be adopted in future, unless they are altered or repealed or amended by a competent legislature[9]. That means the treaties,  agreements etc., entered into by the then British Government on behalf of British India shall be valid, until they are repealed, amended or altered.

Practically India adopted the customary International Law in her Internal Law. It is similar to that of British Practice. British follow dualistic view. India also follows dualistic procedure.

Berubari Case (1969)

Berubari was a small piece of land of 9 square miles in West Bengal having about 12,000 population. The Indian Government entered into an agreement with Pakistan to give Berubari to Pakistan in exchange of Cooch-Bihar enclaves. Political agitation started against this agreement.

The President of India referred the matter to the Supreme Court of India under Article 143 of the Constitution of India[10]. The President of India asked two questions:

Was any legislative action necessary for the implementation of agreement?

Was Article 3 of the Constitution sufficient or an amendment was needed?

Decision:

The Supreme Court gave its opinion under Article 143 that if the Government of India would want to cede a part of the territory of India to a foreign state, it can do so only by an amendment of the Constitution.[11]

Supreme Court held “Ordinarily an adjustment of a boundary which international law regards as valid between two nations, should be recognized by the courts and the implementation thereof can always be with the executive unless a clear case of cession is involved when Parliamentary intercession can be expected and should be had. This has been custom of nations, whose constitutions are not sufficiently elaborate on this subject… A settlement of a boundary dispute cannot be held to be a cession of territory… A treaty really concerns the political rather than the judicial wing of the state. When a treaty or award after arbitration comes into existence it has to be implemented and this can only be if all the three branches of Government to wit the legislature; the Executive and the Judicial; or any one of them, possesses the power to implement it. If there is any deficiency in the constitutional system, it has to be removed and the state must equip itself with the necessary power. In some jurisdictions the compromise read with the Award acquires full effect automatically in the Municipal Law, the other body of Municipal Law notwithstanding. Such treaties and awards are self-executing. Legislation may nevertheless be passed in aid of implementation but is usually not necessary. “

Result:

As a result of the Supreme Court’s decision in Berubari’s case under Article 143, Nineth Amendment of the Constitution of India, 1960 was passed by the Parliament[12], which re-defined the boundary of the State of West Bengal and made necessary changes in the First Schedule so as to cede the Indian Territory of Berubari to Pakistan as provided in the Indo-Pakistan Agreement.

Treaties entered into by India

India entered into various treaties with several countries. There is a database called “Indian Treaties Database”, maintained by the Ministry of External Affair’s Legal and Treaties Division. It has a complete database of all treaties entered by the Government of India with various countries and intergovernmental organizations since 1950. You can also read complete text of the treaties entered into by the Government of India. There is also a facility to search the database using a search string to find the treaty you are looking for. There are 500+ treaties entered into by India as listed in United Nations Treaty Series.

Are these treaties binding on our country?

Any Country has to follow the obligations of the treaty which they entered into and ratified. In fact, the Country should follow the International Law in the same manner as the country would expect its own citizen to follow the domestic law. In case if it is not observed, then the court’s may order to implement such international law if it is not inconsistent with the domestic law enacted by the Parliament. In case, if the international law is not consistent with the domestic law enacted by the Parliament of India, the court will follow the domestic law. The leading case is: Gramophone co. of India Ltd vs. Birendra Bahadur Pandey[13]. In India, the Parliament, that is the legislative body can only enact laws. Indian Courts cannot enact laws or make legislations since the powers to enact laws are vested with legislatures according to the Constitution of India. Separation of Powers is a great feature of Constitution of India. In India, Courts can only interpret the laws made by legislatures, the Courts in India interprets the obligation of Government of India under International Law related to various treaties entered into by Government of India by issuing judgments and verdicts in domestic cases in which the issues are related to or concerned with treaties entered into by Government of India. As like the Judicial Activism, the Judiciary in India is playing very important and crucial role in fulfilling the obligations of Government of India under various treaties entered into by Government of India.

Application of International Law in India

As mentioned earlier, the Constitution of India has a provision regarding International Law under  article 51. It is in the Directive Principles of State Policy (DPSP) which are in directive nature and cannot be enforced by a Court (under Art 32 or Art 226). But still this Article 51 clearly shows the intention of the framers of the Constitution of India. The Founding Fathers of the Constitution of India had clear vision about the International Law. Article 51 reads as

Promotion Of International Peace And Security-

The state shall endeavor to-

(a) Promote international peace and security;

(b) Maintain just and honorable relations between nations;

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

(d) Encourage settlement of international disputes by arbitration.

In the leading case of Keshavananda Bharathi v/s State of Kerala[14], the Chief Justice Shikri opined that: “It seems to me that, in view of article 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”.

In the above judgment, we can understand that in case the language of domestic law (law enacted by the Parliament or State legislatures) are not clear, then the Court must rely on the International law (parent authority based on which the domestic law was enacted). In the above judgment, we can understand that even if the language of the constitution is not intractable, then the court must interpret it in the light of the United Nations Charter, and the solemn declaration subscribed to by India.

Article 253 of Constitution of India confers power upon parliament to enact laws relating to treaties, to give effect to such treaties, protocols, covenants, agreements and conventions entered into by India with one or more countries and intergovernmental organizations or any decisions concluded at international conferences in which India was a participant.

Article 51 is just directive in nature. It directs the Country to give due respect to International Law. This Article 51 is not saying that International Law is at par with or equal to or part of law enacted by legislature (Parliament or State Legislatures) in India.

Any Article under Part IV (Directive Principles of State Policy) of the Constitution of India must be read with Article 37 of Constitution of India[15].

Article 37 in The Constitution Of India, reads as follows,

37. Application of the principles contained in this Part:

The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

Hence if is there any inconsistency between the International Law and the Domestic Law, the Court has to interpret and construe in harmonious manner to protect the interest of both the laws.

In Krishna Sharma vs. State of West Bengal[16], the Calcutta High Court has decided the case considering the above view.   But in ADM, Jabalpur vs. Shivakant Shukla[17], which is a Writ of Habeas Corpus case, the Honorable Supreme Court of India clearly opined that “nothing which conflicts with the provision of our constitution could be enforced here under any disguise”

The Honorable Supreme Court of India interpreted with liberal construction in the case of Gramophone Co of India vs. Birendara Bahdur Pandey. The Supreme Court of India in this instant case opined that “the comity of nations requires that the rules of international law may be accommodated in the municipal law even without express legislative sanctions provided they do not run conflict with the acts of parliament …the doctrine of incorporation also recognizes the position that the rules of international law are incorporated into the nations law and considered to be part of national law , unless they are in conflicts with an act of parliament.”

Judicial Activism paved the way for various good and noble things in India. Polluter Pays Principle, Principle of Sustainable Development, Precautionary Principle are the brainchild of Judicial Activism in India.  In Vellore Citizens Welfare Forum vs. Union of India, the Supreme Court has laid down that “once these principles are accepted as part of customary international law, there should be no difficulties in accepting them as part of our domestic law. It is almost an accepted preposition of law that the rules of customary international law, which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the court of law.” The Honorable Supreme Court decided in the same manner  in the case of People Union for Civil Liberties vs. Union Of India[18]. Hence we can come to an understanding that the Courts in India has interpreted and applied the International Law if it is not inconsistent with the Domestic Law and if is there any inconsistency between the International Law and Domestic Law, the Courts have construed harmoniously.

Enforcement of Treaty Obligations

Here, the first and foremost question, in case of enforcement of International Law Treaties, Conventions etc, is whether those treaties and conventions are binding on India automatically or will they become binding once ratified by the Government (according to Article 253, the power to ratify international treaty is vested with the Government and there is no need to place the treaty before Parliament, even if the treaty has monetary obligations) or do they need any legislation enabling the treaty.

Article 253 reads as follows,

“Article 253. Legislation for giving effect to international agreements:

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.”

The question, whether the treaties are binding automatically or do they need any legislation enabling it was answered in the judgment given by the Honorable Supreme Court of India in the leading case of Jolly George Varghese and Others vs Bank of Cochin[19]. In this case, the Honorable Supreme Court of India, in the words of Justice Krishna Iyer had opined that “The positive commitment of the State Parties ignites legislative action at home but does not automatically make the covenant as enforceable part of the corpus juris of India “.

In general, we can observe that the International Treaties and Covenants are being used to support the domestic laws. Usually the treaties are used, to fill any discontinuity in the domestic law, to interpret the domestic law in case of ambiguity in the language, to justify and fortify a decision taken in any case related to domestic law or international law, to implement international conventions, decisions of international conferences and treaties, covenants and protocols if such treaties or conventions are not inconsistent with existing domestic laws, to fulfill and help achieve the noble cause of the conventions and treaties, to interpret the domestic law so that it will reflect the developments and changes at international level.

Another leading case relating to the enforcement of International treaty obligation is Vishaka vs. State of Rajasthan[20]. Judicial Activism again paved way for guidelines for protecting women from sexual harassment. In this case, the Honorable Supreme Court of India laid down the guidelines for protection of women against sexual harassment and opined that “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 internation conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Article 14, 15 , 19(1)(g) and 21 of the constitution and the safeguard against the sexual harassment implicit there in. any international convention not in consistence with the fundamental rights and in harmony thereof to promote the object of constitutional guarantee”.

Hence we can understand from the above case that the Court can apply International Treaties along with the domestic law, if the treaty is not in conflict with the domestic law.

In the leading case of Nilabati Behera alias Lalit Behera vs. State of Orissa[21], the Honorable Supreme Court of India granted compensation for custodial death and it has justified the decision based on the Article 9(5) of the International Covenant on Civil and Political Rights (ICCPR). In the case of Chairman, Railway Board and Others vs. Chandrima Das[22], the Apex Court while interpreting the scope of Article 21 of the Constitution of India and referred to the Universal Declaration of Human Rights to provide protection to foreign rape victim. In this case the court has observed that “the application of UDHR, and principles thereof may have to be read, if need be, into the domestic jurisprudence.”

Conclusion

Based on the above discussed provisions of the Constitution of India, judgments in various leading cases, we can conclude that the International Treaties and the treaty obligations are enforceable by the Courts in India, if such treaties are enabled by legislating an act by the Parliament of India. There are several such legislations which are enacted by the Parliament of India, once India became signatory to the related treaties and conventions. Example: The Diplomatic Relation (Vienna Conventions) Act 1972. SAARC Convention (Suppression of Terrorism) Act 1993, Protection Of Human Rights Act 1993[23]. Similar acts are enacted on the subjects of territorial waters, exclusive economic zone etc.

In the past few years, the Courts in India decided based on, or justified based on International Treaties and Conventions in various leading cases in case, if such treaties and conventions are not inconsistent with the Domestic laws in India.

Works Cited – Bibliography

1. BINDING AND NON-BINDING INSTRUMENTS IN INTERGOVERNMENTAL RELATIONS – EUCLID PUBLICATION
2. Modern Treaty Law and Practice – Anthony Aust
3. https://treaties.un.org/Pages/showDetails.aspx?objid=08000002802f011f
4. Developments of International Law in Treaty Making – Rudiger Wolfrum, ‎Volker Röben
5. India and international law – Nagendra Singh – 1969
6. India and International Law: Introduction – Bimal N. Patel
7. Constitution Of India, 10/e – Bakshi, ‎P M
8. Introduction to the Constitution of India – Durga Das Basu
9. Constitution Of India, 10/e – Bakshi, ‎P M
10. The Bengal Borderland: Beyond State and Nation in South Asia – Willem van Schendel
11. Indian Administration (Sixth Edition) – Maheshwari
12. Reconstitution of the Constitution of India – Kanahaiyalal Sharma
13. Creative Activities and the Law: Human Rights Approach – Shive Datta Sharma
14. Landmark Judgements That Changed India – Asok Kumar Ganguly
15. Commentary On The Constitution Of India – PK Agrawal , K.N. Chaturvedi
16. Digest of Constitutional Law – Simhambhotla Subrahmanya Sastry
17. The Supreme Court Versus the Constitution: A Challenge To Federalism – Pran Chopra
18. The State Practice of India and the Development of International Law
19. Nationality and International Law in Asian Perspective – Swan Sik Ko
20. Need for Judicial Activism – Moreshwar Kothawade
21. International Human Rights Law and Practice – Ilias Bantekas, ‎Lutz Oette
22. Tools of Justice: Non-discrimination and the Indian Constitution – Kalpana Kannabiran
23. The Indian Journal of International Law: Official Organ of the Indian Society of International Law, Volume 32 – M.K. Nawaz

[1] BINDING AND NON-BINDING INSTRUMENTS IN INTERGOVERNMENTAL RELATIONS – EUCLID PUBLICATION

[2] Modern Treaty Law and Practice – Anthony Aust

[3] https://treaties.un.org/Pages/showDetails.aspx?objid=08000002802f011f

[4] Developments of International Law in Treaty Making –  Rudiger Wolfrum, ‎Volker Röben

[5] India and international law – Nagendra Singh – 1969

[6] India and International Law: Introduction – Bimal N. Patel

[7] Constitution Of India, 10/e – Bakshi, ‎P M    

[8] Introduction to the Constitution of India – Durga Das Basu

[9] Constitution Of India, 10/e – Bakshi, ‎P M

[10] The Bengal Borderland: Beyond State and Nation in South Asia – Willem van Schendel

[11] Indian Administration (Sixth Edition) – Maheshwari

[12] Reconstitution of the Constitution of India – Kanahaiyalal Sharma

[13] Creative Activities and the Law: Human Rights Approach – Shive Datta Sharma

[14] Landmark Judgements That Changed India – Asok Kumar Ganguly

[15] Commentary On The Constitution Of India – PK Agrawal , K.N. Chaturvedi

[16] Digest of Constitutional Law – Simhambhotla Subrahmanya Sastry

[17] The Supreme Court Versus the Constitution: A Challenge To Federalism – Pran Chopra

[18] The State Practice of India and the Development of International Law

[19] Nationality and International Law in Asian Perspective – Swan Sik Ko

[20] Need for Judicial Activism – Dr. Moreshwar Kothawade

[21] International Human Rights Law and Practice – Ilias Bantekas, ‎Lutz Oette

[22] Tools of Justice: Non-discrimination and the Indian Constitution – Kalpana Kannabiran

[23] The Indian Journal of International Law: Official Organ of the Indian Society of International Law, Volume 32 – M.K. Nawaz