This article is authored by Hriti Parekh, a Third-Year student of Law at Hidayatullah National Law University, Raipur, India.
DATE OF PUBLICATION- 9/16/2021
“International law today forms part of a legal hierarchy embracing a number of normative systems united by their ultimate dependence on those functional norms which may be well termed the international Constitution. It is this Constitution that the initial hypothesis or Ursprungsnorm of both international law and municipal law is to be sought.” – J.G. Starke [1]
1. Introduction
International law makes no specific requirements for fulfilling obligations to integrate conventions or tradition into domestic legal frameworks. Furthermore, the mechanism of integrating international law into domestic law is not governed by international law. There is no diplomatic body in charge of enforcing the law.[2] States incorporate foreign law into their domestic legal systems in a variety of ways, depending on domestic law, such as statutory requirements and custom. However, before international tribunals, the state cannot disregard its commitments under international law. Even where international law disagrees with the parties’ domestic rules, international tribunals can give effect to international law. If domestic legislation disagrees with the parties’ treaty agreements, even the constitutions of the parties are ignored.[3] This article examines the general position of international law and domestic legal orders on the impact of international law in the Indian domestic legal system, as well as the method of implementing international law in India in the light of the seminal case of Jeeja Ghosh vs. Union of India.
2. Jeeja Ghosh vs. Union of India – A Critical analysis
A Brief Summary of the Facts
This case stemmed from a public interest lawsuit brought after Ms. Jeeja Ghosh, a disabled rights activist, was pulled from a Spice Jet Ltd plane at the Kolkata airport by its crew because the captain believed she was a danger to the aircraft. The Supreme Court ordered Spice Jet Ltd. to pay Ms. Ghosh Rs. 10 lakh in damages and advised authorities to amend air transport laws to prohibit discrimination against disabled people in airports and on planes.[4]
The court also pointed to international law in drawing this decision, emphasizing the interests of people with disabilities. For instance, the “Vienna Convention on the Law of Treaties, 1963” prescribes India’s internal laws to conform with foreign agreements, according to paragraph 13 of the judgment. A “State group… may not invoke the provisions of its internal law as justification for its failure to perform a treaty,” according to Article 27.[5]
The Paradox between International Law and Domestic Law – An analysis of the Judgement
The “Vienna Convention on the Law of Treaties” (VCLT)[6] was signed in 1969 and came into effect in 1980, so the court’s reference to 1963 is puzzling. Regardless, the first sentence of para 13 appears to be an expression of the international law maxim of pacta sunt servanda. According to this premise, enshrined in Article 26 of the VCLT, any treaty ratified by a nation binds it, and treaty obligations must be fulfilled in good faith by the country.[7]
By ensuring that the country’s domestic rules are compliant with its treaty commitments is one way to uphold treaty obligations. The first sentence of paragraph 13 of the judgment reflects this feature. If this is the case, one might ask why, in the same para, the second sentence references Article 27 rather than Article 26. It seems that the court is defending its application of the pacta sunt servanda principle by citing Article 27 of the VCLT (which prohibits the use of domestic law as an excuse for international law violations), although it should have quoted Article 26.[8]
The phrasing, if anything, demonstrates that the Indian Supreme Court also lacks full understanding on the essence of international law and its connection to India’s domestic legal framework. As a result, a better interpretation of international law and how it interacts with domestic law is important.[9] Unlike in other nations, where international law is considered part of the law of the land even though it has not been transformed into national law (i.e. the concept of monism), “international law does not become binding under the Indian constitution unless appropriate domestic legislation is passed to give substance to it” (as we have already observed).
Many concerns have also been raised by the Supreme Court’s incorporation of International Law into the municipal system, which can be interpreted as “creeping monism”, which may obscure the line between monism and dualism, potentially limiting parliament’s ability to implement laws.
“Creeping Monism” – A Cause for Concern?
According to Melissa A. Waters, an expert in International law, “Many common law judges, however, are eroding the traditional dualist approach as part of a phenomenon that I call creeping monism – that is, a gradual shift in judicial orientation toward a more flexible interpretive approach to unincorporated human rights treaties. No longer do they treat unincorporated human rights treaties as having no domestic legal effect. Instead, they are developing a wide range of interpretive incorporation techniques that enable them to utilize treaties in their work despite the absence of implementing legislation giving formal domestic legal effect to treaties.” [10]
A judicial transition toward monism does raise questions about legitimacy. First, while conventional conceptions of authority and jurisdiction may be changing, this does not imply that traditional common law dualism’s philosophical foundations have entirely eroded. Indeed, in a world where jurisdictional borders are becoming increasingly hazy, distinctions between the “national” and the “international” become much more relevant.
Roger Alford has warned of the pitfalls of a “international counter majoritarian difficulty”[11] when domestic courts use international legislation to declare legislative actions unconstitutional, potentially overruling the will of the people as articulated by the legislature.
3. Varying Approaches of the Indian Courts – Case law based analysis
The dualist approach of our India Legal System is observed in the following important cases:
In “State of West Bengal v. Kesoram Industries,” the Supreme Court reaffirmed India’s “doctrine of dualism,” stating that “a treaty entered into by India cannot become law of the land…unless Parliament passes a law as necessary under Article 253.”[12]
In the case of J.G. Verghese v. Bank of Cochin, the Indian Supreme Court distinguished between treaty law and customary international law. The court stated that only treaty law would require the Indian legislature to pass laws in order to be enforced. The court held that, as far as customary law is concerned, courts can be bound by it even before the legislature has made the requisite amendments to Indian law.[13]
In the case of “National Legal Services Authority v. Union of India,” the court stated: “If the Indian parliament passes laws that conflict with international law, Indian courts are obligated to apply Indian law rather than international law. In the absence of laws to the contrary, municipal courts in India will respect international law.”[14]
In “Krishna Sharma v. State of West Bengal,” the Calcutta High Court stated that where there is a conflict between international and domestic law, courts should attempt to harmoniously construct the two. In addition, courts must examine the text and meanings of international instruments including treaties, conventions, and declarations.[15]
In Vishakha vs. State of Rajasthan, it was observed that “regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law”.[16]
However, In cases like “G Sundarrajan v Union of India” (2013), the Supreme Court has resorted to international conventions that are compliant with Indian law but that India has not ratified.[17]
The most recent case was the WTO Solar Panels Case against the United States where India argued that “legislative action to implement a foreign instrument is expected only where there is conflicting domestic law”, citing its own Supreme Court jurisprudence. As a result, “even though there is no authorizing domestic legislation, foreign instruments that are compliant with domestic law become part of the law of the country.” The WTO Appellate Body, however, rejected India’s claim, holding that applying international law to read India’s domestic laws would not imply that these international instruments have “direct effect” in the Indian legal system.[18]
4. Proposed Changes to the Order
The author proposes a normative framework based on the historical dualism/monism dichotomy to balance the conflicting questions posed by the interpretive integration trend and its weakening of strict common law dualism. Although common law courts are not required to follow a rigid dualist approach to international law, they should not completely abandon it. Instead, they should take a “dualist in orientation, monist in technique”[19] approach to their practice, in which they strive to incorporate the best of monist-oriented interpretive approaches while staying true to their historical dualist origins.
In the light of the same, and taking all the previously discussed cases into account, the order of the SC in this case could have been differently written, in the following manner:
The “court should have cited Article 26 and not Article 27 of the VCLT. Article 27 has a different purpose, It forbids the use of domestic law as a basis for international law violations. That is, if a state is guilty of breaking international law, it cannot use domestic law to defend itself.” Article 26 on the other hand justifies the principle of pacta sunt servanda.[20]
The court should not have solely relied on the VCLT and other international conventions, rather, it should have focused on harmoniously interpreting the international law with the domestic law by giving equal weightage to the domestic law as well, securing the legitimacy of the parliament which essentially represents the will of the people of India.
If there is a void in the domestic law related to the issue at hand, and henceforth the court has to rely on international legal remedies, the court should “judicially incorporate” such an international remedy by instigating the Parliament to bring in a legislation in that regard, establishing the Parliament’s authority as the supreme law-making body of the country.
5. The way forward
Domestic rules take precedence over international laws under the Constitution. Any international convention that is consistent with the fundamental rights and in accordance with its spirit must be read into those provisions in order to expand their scope and substance and to support the Constitution’s purpose. Ignoring international law is not the answer; amending the Constitution to make international law more effective is the answer, and that should happen through the legislature which is the supreme law-making body of the nation.
The objective should be to provide an evaluation process that allows courts to grow into their emerging positions as mediators between domestic and international legal regimes. Domestic courts will, in the author’s opinion, play a greater mediating role in the future.[21] However, the mediating position must be established with considerable caution and consideration to questions about democratic legitimacy. One way is the domestic value structure proposed throughout this essay, which encourages courts to remain essentially dualist in orientation (and thus firmly embedded in the domestic polity), while also allowing them to consider at least certain limited uses of treaties in interpreting domestic law, making them monist in technique.