Author: Manasvi Kanaparthy
Student, Indian Institute of Management, Rohtak
The very term international law, rather public international law, meaning the body of laws that govern nations (jus gentium) has a tendency to invoke apathy and disinterest from those of us who consider the law a purely practical subject, meant to regulate and simplify real-life interactions. It is considered distant, purely pedantic, and often pretentious. Such a reaction although expected, is not justified. In the world, which has been made closer and smaller with the growth of technology, and in a country like India which prides itself on being well connected and internationally involved, such a perspective is erroneous, to say the very least.
International law has influenced and pervaded the jurisprudence of the Indian legal system. Gaining independence immediately following the second world war, the growth of the modern international legal jurisprudence corresponded with the framing of the Indian constitution. The constituent assembly, as is evident from the transcripts of the debates available to us, was acutely aware of the developments in the newly formed United Nations. The authors of the Indian constitution were also responsive to these developments. So, international law that was evolving during that period had an undeniable role in the forming of the Constitution, and by necessary implication, the Indian legal and social systems.
But to continue this discussion, it is necessary to first understand what is and what constitutes international law.
Article 38(1) of the International Court of Justice Statute[1] is a comprehensive definition of the term international law. According to it, international law consists of international conventions and treaties, international custom, general legal principles accepted by member states, and finally, juristic writings of renowned authors, to aid in interpretation.
Treaties are one of the primary sources of international law. According to the Vienna Convention on the law of treaties, it is defined as an agreement concluded between two sovereign states. Treaties can be signed between two or more nations, bilaterally or multilaterally. These are central to the construction of international law because of their written and codified nature.
[2]Custom has also been considered an integral part. To consider practice as binding customary international law, it has been said that it must satisfy two conditions. The first is standard usage and practice. The practice in question must be in usage, uniformly and widely across multiple nations and regions. The second condition to be satisfied is opinion, Juris. It refers to the intent of the nations in abiding by the practice in question this means that those jurisdictions that follow the practice must be practicing it because it is believed to be legally binding, and not simply because it is convenient.
[3]General legal principles constitute the third component of international law. Although it is widely acknowledged that rigidly separating these categories is counterproductive and reductive, for the sake of understanding, this category is understood to be distinct from custom. It is understood to be the principles and rationales underlying the custom that is considered a binding source of law. These principles have become so essential to the interpretation and derivation of international law that they cannot be categorized plainly as custom. They are derived extensively from academic sources. Principles of natural justice like justice, equity, and good conscience. They are not dependent purely on state practice like the category of custom is.
Previous judicial decisions of the international tribunals and bodies are also a significant component of international law. This seems rather obvious and implied in common law jurisdictions where the practice of judiciary setting precedents is common, however, in civil law countries it is not such a common practice and hence has to be addressed separately.
Finally, juristic and scholarly writings of renowned authors are also considered authoritative to some extent for deriving international law. Authors that have gained worldwide fame in their writings are very frequently cited as sources by the international tribunals. To streamline these sources, the international court of justice releases a bibliography in its yearbook.
[4]The authority of international law cannot be understood in the way that municipal law is understood. It falls short as far as the positivist definition of law is concerned. Austin defined law as the command of the sovereign backed by sanction. This is because both the components of that definition, ‘command of the sovereign’ ‘which is backed by the threat of sanction’ are inapplicable. The authority of international law comes from a consensus of several sovereign countries. Although certain grave violations of international law do result in sanctions from the international community, those are exceptions. Generally, there are no sanctions for violating international law. [5]And whether a country is bound by a certain law is also by the choice of that country. The international court of justice only has jurisdiction in cases where the nations involved in the dispute voluntarily submit to its[ARP3] jurisdiction, the decree is not binding on the nation either. So, the presumption of absoluteness that we attach to municipal law and law in general, is seemingly absent in the case of international law.
Implications of International Law on Indian Citizens
The framers of the constitution intended for international law and relations to become part of domestic policy wherever desirable. This is evident from Article 253 [6] of the constitution which gives parliament the right to frame policy in furtherance of any international treaty, convention, or the resolution of any international body. As of now, international law is applicable in Indian courts if domestic legislation to that end has been enacted.
As previously mentioned, the Universal Declaration of Human Rights was being drafted around the same time the Indian constitution was being drafted and so India was not merely a signatory but incorporated the rights into the very foundation of our legal system by way of fundamental rights and directive principles of state policy. Indian representatives like Hansa Mehta and Lakshmi Menon to the UN also played a major role in envisioning the rights granted internationally. This close and simultaneous development of fundamental rights in India in consonance with the international developments ensured that Indian citizens were guaranteed rights that were inalienable. Together with the ICCPR and ICESCR, the UDHR constitutes the international bill of human rights. India has ratified around 15 international human rights treaties.
International human rights treaties impose obligations on consenting states to protect the rights of individuals. The language of these treaties makes it clear that these treaties, although dealing with individual rights, put the burden on governments to uphold them because human rights are claims against the state.
The International Covenant on Civil and Political Rights[7] (ICCPR) was signed and ratified by India, and in keeping with its requirements, India enacted the Protection of Human Rights Act, 1993. This act constituted the National Human Rights Commission and its state-level counterparts. The NHRC monitors human rights violations in the country and provides a streamlined redressal mechanism for those aggrieved, a few decades later, the NHRC has become an integral remedy available to citizens. Section 2(1)(d) of the protection of human rights act, defines human rights as rights guaranteed by the constitution as well as those embodied in the international covenants that India is a party to. These rights are enforceable by the court in India. This brings international laws relating to human rights into the purview of the Indian judiciary, making these rights attainable to the Indian citizens.
India has ratified the International Covenant on Economic, Social, and Cultural Rights. Articles 13 and 14[8] under this particular convention guarantee the right to education to individuals, without discrimination. They allow for all people to have equal and accessible education. It requires state parties to ensure free and compulsory primary education for all citizens. At the time of ratification of the covenant, and even for decades after that, India did not contain a specific enforceable provision for the right to education, despite being part of the directive principles of state policy. However, in furtherance of the covenant, the right to education was included as a fundamental right in 2009. Additionally, the right to education act[9] was also enacted for the better implementation of the right.
The Protection of Women from Domestic Violence Act, 2005[10] was enacted in order to give legislative effect and enforceability to the ratification Convention on Elimination of All Forms of Discrimination against Women[11]. The amendment to the Hindu Succession Act[12] allowed Hindu women to inherit ancestral property on par with their male relatives, in keeping with article 15 of the convention which allows women the right to deal with property
The Indian Judiciary on several occasions has referred to these very international covenants, even in the absence of domestic legislation, to further the rights of individuals. It has been held by the supreme court in Visakha vs the State of Rajasthan[13] that where the domestic law is silent on issues concerning human rights, international law can be read into interpretations to protect those rights, as long as those principles are not against the constitutional values.
It can be concluded that international law, in its many forms, is not distant and alien to the individual citizen. In fact, it has so deeply pervaded the constitutional and legislative landscape of the country that we don’t realize just how affected we are by it. Almost every right granted to the citizens has its genesis in an international platform, document or binding custom. This is perhaps one of the more desirable consequences of modernization.
[1] Statute of the International Court of Justice, art.38, 26 june 1954
[2] Kunz, J., 1953. The Nature of Customary International Law. American Journal of International Law, 47(4), pp.662-669.
[3] Pomson, O., 2014. A Basic Introduction to the Sources of International Law. SSRN Electronic Journal,.
[4] Shaw, M., n.d. International law. Cambridge: Cambridge university press.
[5] Guzman, A., 2011. The Consent Problem in International Law. SSRN Electronic Journal,.
[6] Constitution of India. Art. 253.
[7] International Covenant Civil and Political Rights, 23 March 1976.
[8] International Covenant on Economic, Social, and Cultural Rights, art. 13-14, 3 January 1976
[9] Right to Education Act, 2009.
[10] Protection of Women Against Domestic Violence Act, 2005
[11] Convention on Elimination of All Forms of Discrimination Against Women, art 15, 18 December 1979
[12] Hindu Succession Act, 1956
[13] Vishaka & Ors vs State Of Rajasthan & Ors [1997] AIR SC 3011 (Supreme Court of India).