International law - Meaning and Implementation. An Analysis.
Introduction
International Law can be referred to as a set of treaties, rules and agreements that applies between states and between international institutions and states. Oppenheim has defined International Law as “Law of Nations or international law is the name for the body of customary law and conventional rules which are considered binding by civilized states in their intercourse with each other.”[1] Depending on the source of international law, in most cases it is binding in nature and requires subsequent compliance from the involved parties. Other International Law can be referred to as “Soft Law” as its principles and agreements are not binding on the parties involved.
This paper first tries to establish what is international law and what its sources are. In order to gain a deep understanding of the concept the paper dives into each of the sources mentioned under Article 38 of the Statute of the International Court of Justice. The paper then dives into the question of how international law is implemented. The paper to show how implementation is done looks at two specific topics. For this the paper first looks at the dispute resolution mechanism under the United Nations. The paper deeply dives into understanding each of the dispute resolution techniques mentioned under Article 33 of the United Nation Charter. The paper then talks about international law implementation through the constitutions. This is done through understanding the widely used monist and dualist approach and comparing constitutions of various countries. The paper at last does a deep analysis of how international law is implemented in India.
Methodology
In order to understand what International Law is, the paper in depth is does the study of the sources of international law mentioned under Article 38 of the Statute of the International Court of Justice. For this the author uses various articles of the 1969 Vienna Convention to understand the exact scope and nature of the mentioned sources of International Law.
Next in order to a gain a deeper knowledge of the process of implementation of international law, the paper examines the methods mentioned under Article 33 of the United Nation Charter. For this purpose, apart from other statutes the paper mainly uses the United Nations Charter, The United Nations Handbook on the Peaceful Settlement of Disputes between States, The 1992 Agenda for Peace proposal, The 1949 Revised Geneva General Act for the Pacific Settlement of International Disputes and the 1907 Hague Conventions for the Pacific Settlement of international Disputes. In order to gain further clarity on the subject the paper also refers to several landmark judgements of the International Court of Justice.
Next in order to establish the role of International Law in Constitution making the paper through the help of notable authors (M. Kirby, A. Anghie & G. Sturgess etc.) explain the monist and dualist approach. The paper also refers to various provisions of different constitutions in order to prove the two approaches. At last, the paper tries to understand the Indian Scenario in regards with the scope and implementation of International Law through the help of various Indian legislations and primarily the Indian Constitution and the landmark judgments of the Indian Supreme Court.
Sources of International Law
Article 38 of the Statute of the International Court of Justice enlists the 4 primary sources of international law. They are, “(a) international conventions or treaties establishing rules expressly recognized by the contesting states; (b) customary international law, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) and 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]
A. International Conventions or Treaties
The term “Treaty” has been defined under Article 2 of the 1969 Vienna Convention on The Law of Treaties as an “international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation” [3]
Rules and standards relating to the interpretation of international treaties are given under Articles 31 and 32 of the Vienna Convention. International Treaties are legally binding in nature and can be both multilateral of bilateral, but treaties are non- binding legally to non-signatories or third parties in relation to the particular international treaty. General rules relating to compliance, amendments, membership, modifications and termination are contained within the treaty itself. In terms of registration, bilateral treaties are to be deposited with either of the signatory to the treaty. The multilateral treaties are public in nature and are to be registered with the United Nations.
B. Customary International Law
Customary International Law can be defined as obligations developing from established international practices. Unlike International treaties, Customary International Law obligations are to be met with all states and not only the states who opt in. In order to be considered as Customary International Law, a rule or principle should fulfil two elements, “(a) be general and widespread among states and (b) be accepted as law or arise out of a sense of legal obligation to follow that practice (known as opinio juris sive necessitatus).”[4]
Because of their nature International Conventions or Treaties may overlap or conflict with Customary International Law. In such a situation if a state denounces from such a customary law, it is in some cases immunized from legal obligation, but in cases where customary law is fundamental in nature (such as prohibitions on torture, slavery, genocide and piracy[5]) and most states have accepted such customary law, no derogation is allowed by any state. Article 53 of the Vienna Convention delas with such matters and states that, “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”[6]
C. General Principles of Law
General Principles of laws are referred to as general domestic laws that are found in nearly all the legal systems (Common law, Islamic Law, Civil Law) and have thus found their place in international Law due to them being present in most nations around the world too. Following are some of the principles that can be considered as General Principles of Law, “
Pacta sunt servanda (“agreements must be kept”) (ex: treaty enforcement),
Lex specialist derogate generalis (“the specific prevails over the general”) (ex: conflict of laws)
Sic utere tuo ut alienum non laedas (“use your own so as not to injure another”) (ex: international environmental law).”[7]
D. Judicial Decisions & Qualified Publicists
Only in the most rare of circumstances when international tribunals are not able to settle a dispute with the help of either customary international law, International Conventions, Treaties and general principles, they refer to various scholarly articles produced by the international community or the decisions of international judicial bodies.
International Law implementation - International Dispute Resolutions
In order to have proper implementation of International Law, it becomes necessary to have a properly functioning dispute mechanism. States, under the United Nations have a primary responsibility to solve any disputes arising under the International Law in a peaceful manner. Article 33 of the United Nation Charter states that, “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”[8]
From the above mentioned definition, it is clear that the United Nation envisages both non-adjudicatory procedures (negotiation, mediation, and conciliation) and adjudicatory proceedings (Arbitration and judicial settlement) in order to deal with International Disputes. In total there are more that one hundred and twenty five judicial settlement bodies and out of these eighty two are currently active and are functioning judicial bodies.[9] The jurisdiction of the above mentioned judicial settlement bodies can either be based upon territory or a particular subject matter. The International Court of Justice is a judicial organ of the United Nations which has general jurisdiction. Jurisdiction relating to a particular subject matter can be seen in the cases of International Criminal Court, Human Rights Commission etc.
Now this paper will try and analyse the various different dispute resolution tools provided under Article 33 of the United Nations Charter:
A. Negotiation
Negotiation is the first listed tool under Article 33 of the United Nations Charter. Of all the different tools mentioned, negotiation is the simplest and fasted for the purpose of dispute resolution. Negotiation is also the most used dispute resolution tool.[10] Negotiations in the practical world are often the go to solution for any dispute even if the parties involved eventually go on and use other mechanisms.
Negotiations can be done over any kind of disputes, weather they are political, technical or legal in nature. Negotiation is one of the most popular tools for dispute resolution as it allows the parties involved to escape the long and time consuming requirements of other dispute resolution tools. Negotiation as a tool does not have any fixed procedure and can be done at leisure of the parties involved. One of the biggest advantages of this process is that after the process of negotiation is done no party is termed as innocent and the other one as guilty, this process provides for a win-win situation.
Some International regimes, especially those who deal with maritime issues, put an obligation on the parties to negotiate first in case a dispute arises.[11] The International court of Justice has defined the nature of the above mentioned obligation in the North Sea continental shelf cases[12], where it is stated that, “The parties are under an obligation to enter into negotiations with a view to arriving at an agreement …; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of the parties insists upon its own position without contemplating any modification of it.” Judge Lachs has further clarified the process of negotiation when he says that “the obligation to negotiate … does not imply an obligation actually to reach agreement. The obligation is only to try one’s best.”[13]
There is no set time limit for the process of negotiation, but the International Court of Justice in the South West Africa Cases (Preliminary Objections)[14] has said that “it is not so much the form of negotiation that matters as the attitude ae Parties on the substantive issues of the question involved. So long as both sides remain adamant..., there is no reason to think that the dispute can be settled by further negotiations between the Parties."
B. Mediation
The principal feature of the process of mediation is that it involves a third party that is not involved in the dispute. The process of mediation involves a third party facilitating the part involved in a dispute to come to a peaceful settlement when the parties involved are not able to solve the dispute within themselves. A mediator can either be a neutral individual, an organisation or a state. A mediator can only be selected when its approval is granted by all the parties involved in a dispute. The United Nations Handbook on the Peaceful Settlement of Disputes between States, states that, “the third party offering good offices, be it a single state or a group of states, an individual or an organ of a universal or regional international organization, must be found acceptable to all the parties to the dispute”[15]
The third party involved in the process of mediation has the primary responsibility for providing a passage of communication to the parties involved in the dispute so that they can negotiate in a positive manner. Neutrality and impartiality are core aspects of the job of a mediator as they help in maintain the confidence of the parties involved in a dispute on the mediator. Another important aspect of mediation is that it is done confidentially so that the parties involved in the dispute does not face any kind of pressure from anyone.[16]
Mediation as a tool for dispute resolution has been nationalised over the years and has been used in maintaining world peace and order. The 1992 Agenda for Peace proposals, states that, “Mediation and negotiation can be undertaken by an individual designated by the
Security Council, by the General Assembly or by the Secretary-General. There is a long history of the utilization by the United Nations of distinguished statesmen to facilitate the processes of peace. They can bring a personal prestige that, in addition to their experience, can encourage the parties to enter serious negotiations. There is a wide willingness to serve in this capacity, from which I shall continue to benefit as the need arises”[17]
C. Inquiry
An inquiry in essence is a fact finding mission through an impartial inquiry. In cases where the facts relating to a dispute are rather unclear, parties to a dispute can ser up an inquiry by an impartial body. The following can be the subject matter of the inquiry, “to establish the basic information about the case, to see if the claimed infraction was indeed committed, to ascertain what obligations or treaties may have been violated, and to suggest remedies or actions to be undertaken by the parties.[18]”
The basic aim of an inquiry is to serve a basic platform of facts upon which a dispute between the parties involved can be settled. In cases where the dispute in question creates danger to world peace and order, Article 34 of the United Nations Charter, gives the security council the powers to initiate an inquiry into the dispute. Article 34 of the United Nation Charter states that, “The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.”[19] Article 35 further states that, “Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly.”[20]
The findings of the inquiry are not legally binding on any of the parties involved in a dispute and the parties have the right to accept or reject the findings of the inquiry.[21] Over the years man inquires have been set up by the United Nations (1979 - Israeli settlement policies, 1995 - Burundi genocide, 2004 - International law violations in Sudan’s Dafur province)[22]
D. Conciliation
When parties involved in a dispute, by the way of an agreement appoint a third party for the purposes of investigation of the dispute and proposing recommendations for the settlement of it, this process is call conciliation. Conciliation as a process is Quasi-Judicial in nature.[23]The third part appointed for the process of conciliation has to examine all the various aspects of a dispute.
The 1949 Revised Geneva General Act for the Pacific Settlement of International Disputes defines the functions of a conciliation committee as follows, “The task of the Conciliation Commission shall be to elucidate the questions in dispute, to collect with that object all necessary information by means of enquiry or otherwise, and to endeavour to bring the parties to an agreement. It may, after the case has been examined, inform the parties of the terms of settlement which seem suitable to it, and lay down the period within which they are to make their decision."[24]
Conciliation can be differentiated from the process of inquiry as in the process of inquiry, the inquiry commission is only concerned with establishing the factual platform in the dispute case whereas in the process of conciliation, the third part appointed has to examine all the aspects of the dispute including the factual circumstances. Another major difference between the two is that during the process of inquiry, mutual consent of the parties involved in the dispute is needed at all times whereas in certain circumstances, conciliation can begin at the request of only one party. Articles 84 of the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, states that, "If a dispute between two or more States Parties arises out of the application or interpretation of the present Convention, consultations between them shall be held upon the request of any of them.”[25]
E. Arbitration
“International arbitration has for its object the settlement of disputes between States by judges of their own choice and on the basis of respect for law. Recourse to arbitration implies an engagement to submit in good faith to the award”[26]
Even though Arbitration has been used for many years for the purposes of international Dispute Resolution, its rules and procedures have never been properly codified. One of the main reasons behind this is the fact that the process of arbitration allows the parties to a dispute to set their own standards and procedures for the settlement of their dispute. Some institutions however tried to produce model rules for the process of arbitration like the above mentioned part of the 1899 and 1907 Hague Conventions for the Pacific Settlement of international Disputes.
The need for the process of arbitration can arise out of the following:
“(1) Arbitration clauses inserted into treaty which require that if dispute arises between the
contracting parties in respect of the interpretation or application of that treaty they will
be bound to submit it to arbitration.
(2) Compromis which is a formal agreement, after the dispute has occurred, to submit the
dispute to arbitration. Compromis will normally stipulate the terms under which the
tribunal will function, its composition, competences and law applicable to the dispute.
(3) The provision on arbitration in several treaties. Arbitration as a method of settlement of
international disputes is provided for in numerous treaties, including the General Act for
the settlement of disputes 1928 adopted by the league of Nations and reinvigorated by
the General Assembly in 1948, the Washington Treaty of Inter – American Arbitration
1929, the American Treaty on pacific settlement of disputes 1948 and the European
convention for the peaceful settlement of disputes 1957 elaborated under the auspices of
the council of Europe.”[27]
One of the basic principles of the process of arbitration is that it produces legally binding decisions. But in certain situations, the decisions made after arbitration are not legally binding. The following are the circumstances:
1. Invalidity of the Compromis as a result of lack of Jurisdiction.[28]
2. Excess du Pouvoir (excess of Jurisdiction) as a result of deciding an issue that was not submitted to the tribunal or applying a law that is not authorized[29]
3. Lack of, or inadequate, statement of reasons in which the award is based.[30]
4. Fraud and Corruption on the part of a tribunal member or the presentation of evidence[31]
5. Essential error where this is taken to mean manifest error.[32]
In the process of arbitration, the parties themselves by mutual agreement decide the set of procedures and rules that are to be followed during the process. In some cases the parties rely upon specific sets of international law, for example in the case of Boundary Dispute (Taba) between Egypt and Israel (1988).[33] In some cases parties make their own set of rules and standards for the process of arbitration, for example in the 1872 Alabama arbitration between United Kingdom and the United States.[34]In cases where the agreement of arbitration between the disputed parties, does not specify the laws and rules applicable during the arbitration process it is understood that the general rules of international law will apply.[35]
The parties also have to mutually decide on the members of the tribunal. This process can be either done by taking direct names or setting out a procedure for the same. The number of arbitrators can be any uneven number. The parties also have to decide upon the jurisdiction of the above mentioned tribunal and its scope of powers.
Because of the nature of the process of Arbitration, states prefer the process over the settlements made by judicial Authority. The process of arbitration not only given legally binding decisions like the judicial authorities, but Arbitration also allows the parties to a dispute to chose arbitrators of their own choice. The process of arbitration proves to be more convenient for the disputed parties because of the flexibility of the procedure. Another plus point for the process of arbitration is that it allows the disputed parties to chose rules and procedures unlike the judicial bodies which follow a specific set of rules. The outcome of the process of arbitration has more chances of satisfying the disputed bodies as they have direct control over the process. Even data shows that awards given after the process arbitration are comparatively more adhered by the states.[36]
F. Judicial Settlement
Parties to a dispute have an option to refer the dispute to a pre constituted international tribunal or court, who settle the dispute by giving legally binding orders in accordance with the provisions of international law. Now the paper will talk about various such judicial bodies.
The International Court of Justice
The International Court of Justice is located in The Hague, Netherlands. The International Court of Justice was established in the year 1945 at the same time when the United Nations came into existence. As per Article 92 of the United Nations Charter, the International Court of Justice is the primary organ of the United Nations. Members of the United Nations automatically become parties to the statue of the International Court of Justice and in some cases even non-members of the United Nations can also become parties to the statue of the international court of Justice as Article 93 of the United Nations Charter states that, “All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice. A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.”[37]
Member Nations of the United Nations are legally bound by the decisions of the International Court of Justice. Article 94 of the United Nations Charter states that, “Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”[38]
As per Article 34 of the statute of the International Court of Justice, only states can be parties before the International Court of Justice. Even though the individual and organisations may be affected by the rulings of the International Court of Justice, they cannot be parties in front of the court. The International Court of Justice has both contentious and advisory Jurisdiction, it can intervene in a dispute of adversarial nature and can also intervene in a dispute at the request of a authority or any agency of the United Nations.[39]
Rules about the judges of the International Court of Justice are given in its statute. Article 3 of the statute implicates that the there should be fifteen judges at a given point of time at the International Court of Justice, and no two judges can be of the same nationality. About the quality of judges, Article 2 of the Statute states that, “The Court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law.”[40]
Article 38 states that the following International Laws should be applied by the court:
“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.”[41]
Although the decision of the International Court of Justice is final a review application can be filed under Article 61 of the statue, which stress that, “An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.”[42]
Regional Agencies
Article 33 of the United Nations also talks about “Regional Agencies” as another means of dispute resolution. Chapter VIII of the United Nations Charter deals in depth with the role of Regional Agencies in the process of dispute resolution. Article 53 of the United Nations Charter states that, “The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council. The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.”[43]
Article 54 of the United Nations Charter gives the Security Council to enforce action under its authority, it states that, “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state.”[44]
The United Nations Handbook on the Peaceful Settlement of Disputes between States talks about the following Regional Agencies, Arab League, the Organization of American
States, the Organization of African Unity (now reconstituted as the African Union), the
Council of Europe, the Conference on Security and Co-operation in Europe (now the
Organization for Security and Co-operation in Europe, or OSCE), the European
Communities (now the European Union), and the Economic Community of West African
States (ECOWAS).[45]
G. Other Peaceful Means
The last mentioned tool for peaceful solution of international disputes under Article 33 of the United Nations Charter is “Other Peaceful Means”. The term “Other Peaceful Means” signifies that the list of peaceful solutions mentioned under Article 33 of the United Nations Charter is not exhaustive but inclusive in nature. There are 3 types of measures that qualify as “Other Peaceful Means” as described by The United Nations Handbook on the Peaceful Settlement of Disputes between States:
I. Those constituting entirely novel means which are not adaptations or combinations of the
familiar means of settlement.
ii. Those constituting adaptation of one of the familiar means of settlement; and
iii. Those constituting combinations in the work of a single organ charged with resolving the
dispute of two or more of the familiar means of settlement.[46]
International Law implementation – Relationship with Constitutions
Over the years, the relationship between international law and domestic laws has gotten stronger. As states realise the importance of importance of international relations and international laws, various constitutions around the world have started focusing on this aspect as well. Constitutions deal with International Law either with the monist approach or the dualist approach.
Monism Theory
Constitutions that adopt the monism theory, assume that international law and the domestic law as essentially one. In essence the monism theory states that international law and domestic law as part of the same legal order, applying on all the human beings individually or collectively. Under the monist approach, domestic laws can be understood as a subordinate of the larger international law regime and there is no need for international to be incorporated into domestic law, under the monist system the incorporation of international law happens into domestic laws as soon as the ratification of an international treaty.[47]
The international laws under this approach can be directly applied before national courts, except for these two situations:
“In some Constitutions, direct incorporation of international law into domestic law occurs on ratification.”
“In other States, direct incorporation occurs only for self-executing treaties.”[48]
Some examples of this approach:
Article 25 of the German Constitution - “[t]he general rules of public international law … take precedence over the [other federal] laws and directly create rights and duties for the inhabitants of the Federal territory.”
Article 29(3) of Ireland’s constitution - “accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.”
Article 19.2 of the Kosovo - “[I]international customary law and all ratified international agreements have superiority over the laws of the Republic of Kosovo which are not in compliance with them.”[49]
Dualist theory
Constitutions that adopt the dualist theory, assume that international law and the domestic law are not one, and are entirely different legal systems. International law only gets incorporated into the domestic laws after the required law amending activities have been completed as per the constitution.
The basis for the dualist theory is the sovereignty of a sate, which gives the state the power to choose if it wishes to accept the international laws. This approach was first taken not in the United Kingdom, where the court was of the opinion that no principles of international law will be applicable in the United Kingdom until they are accepted by the law in the united kingdom, for the British law makers the court held that they should , “seek to ascertain what the relevant rule is, and having found it they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.”[50]
In the United States of America, the dualist approach adopted can be sensed by this remark of it’s Supreme Court, “No one disputes that the Avena decision, a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts. The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.”[51]
The dualist approach can also be seen in the 1988 Bangalore principles which in essence state that:
(1) International law … is not, as such, part of the domestic law in most common law countries.
(2) Such law does not become part of domestic law until [a] Parliament so enacts or the judges … declare the norms thereby established to be a part of domestic law.
(3) The judges will not do so automatically, simply because the norm is part of international law or is mentioned in a treaty—even one ratified by their own country.
(4) But if an issue of uncertainty arises (…, [or] obscurity in its meaning or ambiguity in a relevant statute), a judge may seek guidance in the general principles of international law, as accepted by the community of nations; and
(5) From this source material, the judge may ascertain and declare what the relevant rule of domestic law is. It is the action of the judge, incorporating the rule into domestic law, which makes it part of domestic law.[52]
Hybrid Approach
Some constitutions adopt a hybrid approach, that is where certain principles of international law are expressly adopted, and some are not. Some examples are:
French Constitution: “Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament….” Treaties thus prevail within the French legal system. But this express acceptance is limited to treaties. It does not include Customary International Law.
South African Constitution: “When interpreting the Bill of Rights, a court, tribunal or forum … (b) must consider international law…. When interpreting other matters, a court would not necessarily be bound by this provision.” But when interpreting the structuring and conduct of security services, including the police, members must act “in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic.”
US Constitution: “This Constitution, and the Laws of the United States … and all Treaties … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” However, the Constitution prevails over all other possible sources of US law, and for treaties versus federal statutes, the above language has effectively morphed into a “last in time” approach. Congress can trump a treaty requirement with subsequent legislation (and vice versa)”[53]
International Law Implementation: Indian Case Study
The Dualist approach can be sensed from the Indian Constitution. For an International Law to be made obligatory in India, it has to pass all the necessary Parliamentary Sanctions. While Article 51 of the Indian Constitution shows the importance of international law when it states that, “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 encourage settlement of international disputes by arbitration”[54] but the principle of dualism in the Indian Constitution can be sensed from it’s Article 253, which states that, “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.”[55]
The dualist approach can also be sensed by various judgements of the Indian Supreme Court. In the case of Jolly George v. Bank of Cochin, the Supreme Court stated that "until the municipal Law is changed to accommodate the [treaty], what binds the courts is the former not the latter."[56] Also in the case State of West Bengal v. Kesoram Industries, the Supreme Court of India further clarified that, “a treaty entered into by India cannot become law of the land . . . unless Parliament passes a law as required under Article 253."[57]The above mentioned cases clearly signal that the Indian Constitution and Courts lean towards the dualistic approach.
Implementation of International Law Obligations
In India there is no particular statute or provision that deals with the status of International Law in the domestic law of India. The Parliament in India has the power to determine the nature of international obligations and how and to what extent they will be implemented. As explained earlier in the paper treaty law is a massive source of international law. In India the power is with the parliament to implement the treaty obligations throughout the country or any desired part of it if it decides to choose so. Article 253 of the Indian Constitution gives such powers to the parliament when it states that, “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.”[58]
While the parliament has the authority to enter in to any treaty agreement, the treaty law will only be applicable in the domestic legal sphere of India when a required legislation is passed to that effect. The process of implementation of treaty law through a required legislation is same in many common law countries like the United Kingdom, Australia, Canada, India etc.[59] This particular subject is justified through the famous case Attorney General for Canada v Attorney General for Ontario[60], where the privy council held that,
“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…. Parliament, no doubt,…has a Constitutional control over the executive: but it cannot be disputed that the creation of the obligations undertaken in treaties and the assent to their form and quality are the function of the executive alone. Once they are created, while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default. “The same rational has been upheld by the Indian Supreme Court in the case of Maganbhai Ishwarbhai Patel v Union of India.[61]
Role of Indian Judiciary in Implementing International Law
The judiciary in India has often created a Gray area in reference to the issue of implementation of international law. The cases mentioned in the previous section of this paper clearly show how the Indian Constitution and the Supreme Court on numerous occasions have opted for a strict dualist approach. Over the years, the stance of Indian Courts on the issue of implementation of international law, has evolved. The Courts in India have at times not held firm on the Dualist approach but have rather chosen some aspects of the monist approach. This above mentioned tilt can be traced as early as the year 1984, when in the case Gramophone Company of India Ltd. v Birendra Bahadur Pandey[62], the Supreme Court while trying to interpret the Indian Copyright Act, said this, “ Rules of International law may be accommodated in the Municipal Law even without express legislative sanction provided they do not run into conflict with Acts of Parliament….The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament.”
The supreme court has even held that in the case where there is a void in the domestic law, international law can be relied upon to fill that void. In the case of Vishaka v State of Rajasthan,[63] the Court stated that ‘[a]ny 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…. The international conventions and norms are to be read into [fundamental rights] in the absence of enacted domestic law occupying the field when there is no inconsistency between them.’
The Supreme Court in the 2014 case of National Legal Services v. Union of India went as far as to say that" If parliament has made any legislation which is in conflict with international law, then Indian courts are bound to give effect to the Indian law, rather than international law. However, in the absence of contrary legislation, municipal courts in India would respect the rules of international law."[64] The above mentioned cases clearly show the confusion that exists in the Indian Legal System while looking at the issue of implementation of international law.
Conclusion
International Law is essential in order to maintain world peace and for making sure that there exists a truly global cooperative society. The paper in the first part tries to establish what is international law. As can be seen from the information presented above it is clear that while there is a clear statue under the Article 38 of the Statute of the International Court of Justice, listing the sources of international law, it still is a hard task to exactly comment on a law and whether it can be considered as an International Law. For example, the provision relating to Customary international law and general principles of law are quite vast and creates a grey area in this regards.
After determining what is international law, the question regarding its implantation still remains. Dispute resolution mechanisms mentioned under Article 33 of the United Nation Charter, play a big part in implementation of international law. Most of the mechanisms mentioned under this Article, namely negotiation, enquiry, mediation, conciliation, and arbitration, allow the parties to a dispute to choose the overall structure of the process itself and makes the process more likely to produce positive results. The International Court of Justice also offers a more concrete process of dispute resolution in the form of judicial settlements.
At last, the paper also shows the role of constitutions play in the implementation of international. States have the luxury of interpreting international law and deciding upon its scope of implementation. The two approaches mainly used are the monist and dualist approach. The Indian Case study shows us that their still exists a constant struggle in the formation and implementation of international Law.
Footnotes
[1] TheFreeDictionary.com. 2022. international law. [online] Available at: <https://legal-dictionary.thefreedictionary.com/international+law.> [Accessed 11 May 2022].
[2] Statute of the International Court of Justice art. 38, June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 993.
[3] Vienna Convention on the Law of Treaties art. 2, May 23, 1969, 1155 U.N.T.S. 331.
[4] 2022. DAVID J. BEDERMAN & CHIMENE I. KEITNER, INTERNATIONAL LAW FRAMEWORKS 83 (4th ed. 2016). Page 18.
[5] ANTHONY AUST, MODERN TREATY LAW AND PRACTICE, 257 (2000).
[6] Vienna Convention on the Law of Treaties art. 53, May 23, 1969, 1155 U.N.T.S. 331.
[7] LORI FISLER DAMROSCH ET AL., INTERNATIONAL LAW: CASES AND MATERIALS 1468 (5th ed. 2014), at 114-229.
[8] Charter of the United Nations, 26 June 1945, Article 33
[9] LORI FISLER DAMROSCH ET AL., INTERNATIONAL LAW: CASES AND MATERIALS at page 554 (5th ed.
2014).
[10] S.C. McCaffrey, understanding international law, Lexis Nexis, 2005, Page 189.
[11] R. M. M. Wallace, International law, Sweet and Maxwell, London, 2002, Page 287.
[12] North Sea continental shelf cases, (1969) ICJ Rep 3
[13] M. Lachs, The law and the settlement of International Disputes, in K. V. Raman (ed), Disputes Settlement
through the United Nations (1977). Page 30.
[14] South West Africa Cases (Preliminary Objections). 1.C.J. Reports 1962, page 346.
[15] United Nations Handbook on the Peaceful Settlement of Disputes between States, New York, 1992, Page 33.
[16] Francisco Orrego Vicuna, “International dispute settlement in an evolving global society”, Cambridge university Press,(2004) page 24.
[17] 1992 Agenda for Peace proposals ([1992] UN Doc S/24111). Page 10.
[18] R. Mani and R. Ponzio, Peaceful Settlement of Disputes and Conflict Prevention, available at
<https://www.stimson.orgfiles> accessed on 10/4/2022. Page 12.
[19] Charter of the United Nations, 26 June 1945, Article 34.
[20] Charter of the United Nations, 26 June 1945, Article 35.
[21] R. Mani and R. Ponzio, Peaceful Settlement of Disputes and Conflict Prevention, available at
<https://www.stimson.orgfiles> accessed on 10/4/2022. Page 12.
[22] R. Lapidoth, Some Reflection on Peaceful Means for the Settlement of Inter – State Disputes, Georgetown
University Law Centre, Washington Dc, Page 17.
[23] A. Kaczorowska, Public International law, Old Bailey Press, London, 2002, P. 347.
[24] Revised General Act for the Pacific Settlement of International Disputes, 71. U.N.T.S. 101-27 (1949). Article 15.
[25] Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character (adopted and opened for signature 14 March 1975, not yet entered into force) UN Doc A/CONF.67/16.
[26] Articles 15 and 37 respectively of the 1899 and 1907 Hague Conventions for the Pacific Settlement of international Disputes, supra note 16
[27] S.C. McCaffrey, understanding International law, Lexis Nexis, 2005, Page 288
[28] The Western Griqualand and Diamond Deposit Case, 1871, Lapradalle et Politis, 2 Recueil des arbitrages International, P. 676
[29] North – East Boundaries Case (US-Canada) 1 Moore Int. Arbitration, 199, 133 – 4
[30] Orinoco Steamship Co. Case (US – Venezuela) 11, RIAA 227
[31] Case Concerning the Arbitral Award of the King of Spain ICJ Rep. 1960, 188, 216
[32] Schreck Case, 2 Moore Int. Arbitrations 1357.
[33] Arbitration Compromis of 1 I September 1986, 26 International Legal Materials, (1987), p. 1, Article LX. The
award was published in 27 International Legal Materials (1988), p. 1421.
[34] lB. Moore, History and Digest ofthe International Arbitrations to which the United States has been a Party, vol. 1, (1898), page 550.
[35] 4 Kenneth R. Simmonds, 'Public International Arbitration - Roundtable', 22 Texas international Law Journal, (1987), p. 149, page 155.
[36] M. Dixon, Textbook on International law, 4th edn, Oxford University Press, 2000, Page 267.
[37] Art. 93 of the UN Charter.
[38] Art. 94 of the UN Charter.
[39] S.C. McCaffrey, understanding international law, Lexis Nexis, 2005, Page 290
[40] Art 2 of the Statute of the International Court of Justice.
[41] Art 38 of the Statute of the International Court of Justice.
[42] Art 61 of the Statute of the International Court of Justice.
[43] Art. 53 of the UN Charter.
[44] Art. 54 of the UN Charter.
[45] The United Nations Handbook on the Peaceful Settlement of Disputes between States
[46] The United Nations Handbook on the Peaceful Settlement of Disputes between States
[47] Sunil Kumar Agarwal, Implementation of international Law in India: Role of Judiciary, DEAN MAXWELL & ISLE COHEN DOCTORAL SEMINAR IN INT'L L., MCGILL U., supra note 1, at 4.
[48] How does international law apply in a domestic legal system, THE PEACE AND JUST? INITIATIVE, https://www.peaceandjusticeinitiative.org/implementation-resources/dualist-andmonist.
[49] Germany: <http://www.iuscomp.org/gla/statutes/GG.htm>;
Ireland: <http://www.servat.unibe.ch/icl/ei00000_.html>;
Kosovo: <http://www.kosovoconstitution.info/?cid=2,247>.
[50] Chung Chi Cheung v. Regina, 1939 Court of Appeals 160 (1939).
[51] Medellín v. Texas, 128 S.Ct. 1346, 1356 (2008).
[52] M. Kirby, The Growing Rapproachment Between International Law and National Law 333, at 340 in A. Anghie & G. Sturgess (ed.), Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry (The Hague: Kluwer, 1998).
[53] . France: Const., Art.55, at: <http://www.assemblee- nationale.fr/english/8ab.asp>. South Africa: Const., Art. 39(1)(c), at: <http://unpan1.un.org/intradoc/groups/public/ documents/UN/UNPAN005172.pdf>; US: Const., Art.VI, at: <http://www.gpoaccess.gov/constitution/index.html>.
[54] INDIA CONST. art 51.
[55] INDIA CONST. art 253.
[56] Jolly George Verghese & Anr vs The Bank Of Cochin, 1980 AIR 470.
[57] State Of West Bengal vs Kesoram Industries Ltd. And Ors, 2004, Appeal (civil) 1532 of 1993.
[58] INDIA CONST. art 253.
[59] See National Commission to Review the Working of the Constitution, A Consultation Paper on Treaty-Making Power under our Constitution (2001), \http://lawmin.nic.in/ncrwc/finalreport/v2b2-3. Html/.
[60] Attorney General for Canada v Attorney General for Ontario, [1937] AC 326 (Privy Council).
[61] Maganbhai Ishwarbhai Patel v Union of India, (1970) 3 SCC 400
[62] Gramophone Company of India Ltd. v Birendra Bahadur Pandey, (1984) 2 SCC 534.
[63] Vishaka v State of Rajasthan, (1997) 6 SCC 241.
[64] National Legal Services v. Union of India, WRIT PETITION (CIVIL) NO.400 OF 2012.