INTERPRETATION AND

EFFECTUATION OF
INTERNATIONAL LAW IN
THE DOMESTIC LEGAL
ORDER
THE LAW AND PRACTICE
 - A Brief Synopsis -
1.) Theoretical Approaches
2.) The position of municipal law within international
sphere
3.) The Inter-mingling of the Spheres: A Case of
Britain
4.) International Law before Indian Courts
 The International Personality of India & Applicable
Law
 The Indian Constitution & International Law
 Judicial Interpretation of International Law & its
Percolation
1. THEORETICAL
APPROACHES

MONISM

DUALISM
• DUALISM: - The state is supreme and there exists a
wide difference between functioning of the
international and municipal legal orders.

Influence of the Positivist thought

• MONISM: - Municipal and international law
form one single legal order or at least a number
of interlocking orders which should be
presumed to be coherent and consistent.
 The Chief Proponents
Dualism Monism
• 1st approach: -Triepel & • Version- 1: - Lauterpacht-
Strupp: Supremacy of the Representing the Naturalist
State. Stand. Primary function of
all law is concerned with the
well-being of individuals.
• 2nd approach: -
Fitzmaurice & Rousseau:
• Version- 2: - Kelsen- Legality
No common field of
of a rule is affirmed once it
operation between conforms to an anterior rule.
national & international Refers to the grund norm.
law. Both are supreme in
their own spheres.
2.) The position of municipal law
within international sphere

INTERNATIONAL SPHERE
 The position of municipal law within
international sphere
International Law does not ignore municipal law

Source of International Law

International Law leaves

certain questions to be
decided by municipal law
 But…
• The general rule of international law is
that a state cannot plead a rule or a gap
in its own municipal law as a defense to a
claim based on international law.

• STATES ARE REQUIRED TO

PERFORM THEIR INTERNATIONAL
OBLIGATIONS IN GOOD FAITH.
 Art.27, VCLT, 1969

• In so far as treaties are concerned, a

party may not invoke the provisions
of its internal law as justification for
its failure to carry out an
international agreement.
3.) International Law before Municipal
Courts

International Law
 Theories highlighting penetration
of international law in municipal
spheres
 Principle of Transformation: - Based upon the
perception of two distinct systems of law,
operating separately, and maintains that before
any rule or principle of international law can
have any effect within the domestic
jurisdiction, it must be expressly and
specifically transformed into ‘municipal law’
by an Act of Parliament.
 International Law before
Municipal Courts
Principle of Incorporation: - International
Law is a part of Municipal Law
automatically without the necessity for
the interposition of a constitutional
ratification procedure.

Blackstone being the chief proponent

 Practice in Britain

-Doctrine of Incorporation-
Customary International
Law- The dominant
British Approach…!!
 The development in the
Customary international
understanding of incorporation
law rules as part and
parcel of the common law
of England

Thi
s
was
sub
ject
to
prio
rity
gra
nte
d to
Act
s of
Par
lia
me
nt
and
tem
per
ed
by
the
pri
nci
ple
of
star
e
deci
sis
 The modified incorporation doctrine
• International law has no validity except in so far as its
principles are accepted and adopted by our own
domestic law…The courts acknowledge the existence of
a body of rules which nations accept among
themselves. On any judicial issue they 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…
- Chung Chi Cheung v. R
(1939)
The Contemporary Approach

Cautious
Transformation
Incorporation
 Caution has to be exercised
• Caution has to be exercised before
accepting a proposition in unqualified
terms.

• International Law not a part, but rather

one of the sources of English Law.
No ‘incorporation’ without caution
A degree of
caution is
necessary

Int. Law could not create

a crime triable directly,
w/out the intervention of
Parliament, in an English
Court

Cust. Int. law is

R v. Jones
No direct &
applicable in the
English courts only unqualified 2006
where the constitution
permits acceptance
Therefore, incorporation will be subject to considerations of a constitutional nature

• The courts will be obliged to conduct an

enquiry into whether a particular provision
indeed constitutes a rule of custom;
and
• Whether there are any constitutional bars
to incorporation.
Therefore, British practice in regards
to customary rules of international
law
….subject to the following conditions: -
(a)Rules of international Law should not be
inconsistent with the British statutes; and
(b)If the highest court once determines the
scope of a customary rule of international
law, then all the courts in Britain are
bound by it.
International Personality of India
& the Applicable Law
 India’s
Independence in
1947
A Modicum of self
British Parliament government was
undertook India’s established
international The territorial
obligations boundaries did not
Many treaties were coincide with the
signed Pre-Independence
International India was a India
Personality ‘common law’ Independent
Original Member country Principalities
of the League of existed.
Nations
Some realities of the times…
India had an
indelible
India took over the British imprint
previous obligations
concluded by
Britain

Self Government
with Communal
Devolution face
Agreement
of 1947
The territorial
boundaries
changed
563 principalities
enjoying varying
degrees of
sovereignty
 The scenario between 1947-1950
The Indian
●
Sec 18(3) sought to ensure the continued
application of “the law of British India and of the
Independence Act, several parts thereof” as existed before
1947 Independence, subject to any statutory changes.

The India ●
All laws in force should have the same
(Consequential application in relation to India, as if
Provisions) Act, 1949 India had not become a Republic.

Most part of Indian law is “basically statutory,

Dalmia v.
●

but it also incorporates large portions of the

National Bank common law, in particular the law of torts.”
“Justice, Equity and Good Conscience”
 The Constitution of India and
International Law: Basic
Provisions
Article 372 Continuance in force of existing laws and their
adaptation
(1) Notwithstanding the repeal by this Constitution of the
enactments referred to in Article 395 but subject to the
other provisions of this Constitution, all the laws in force
in the territory of India immediately before the
commencement of this Constitution, all the laws in force
in the territory of India immediately before the
commencement of this Constitution shall continue in
force therein until altered or repealed or amended by a
competent Legislature or other competent authority
 What the
provision
envisaged

All the law in

force

Subject to other
provisions of
All the law
the
Constitution
 The test to determine a principle
being “law in force”
1. That the principle had become part of the
common law of England;
2. That before the Indian Constitution came into
force, the same principle was accepted and
applied by the Indian courts; and
3. That the principle so accepted as the common
law of India continued to be in force by
reason of Art.372 of the Constitution.
 The test to determine a principle
being “law in force”
4. “in the territory of India” encompasses not only the
territory of the former Dominion of India but also the
territories of Indian rulers under British suzerainty.

5. “immediately before the commencement of the

Constitution” means that international law as it stood
incorporated in the Indian common law and statute law
as at 25th January 1950 shall continue to be in force
through 26th January 1950 until altered by the
legislature or other competent authority.
 Finally….

●
While “immediately before the commencement of this Constitution” has the
effect of “freezing” the international customary law

Freezing
 Article 51
• The State shall endeavor 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 organized
peoples with one another; and
(d) encourage settlement of international disputes
by arbitration.
 The provision is not justiciable

 One as it is a Directive Principle of State Policy.

 Two it reads ‘endeavour’ to promote. An obligation to

‘endeavour’ cannot easily be amenable to tests of
justiciability.

 Three in the realm of foreign policy and international

relations, success or failure of these endeavors will depend
upon the international milieu and attitudes and conduct
of individual countries.
 Art.253 of the Constitution of India

• 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 an international conference,
association or other body.
 TREATIES
• For treaties, an intermediate stage after signature
and before domestic operation is required.
Rel’p between
executive and
legislature

Transform Influence of
executive is
a-tion is greater in
required treaty law
 - DUALIST APPROACH VISIBLE-

• If in respect of any principle of international law,

the Parliament says ‘NO’, the court cannot say
‘YES’. National court shall approve international
law only when it does not conflict with national law.
In case however, the conflict is inevitable, the
national law shall prevail.

Gramaphone Co. of India Ltd. v. Birendra Bahadur Pandey

AIR 1984 SC 667
Sec.6 of the European Parliamentary
Elections Act, 1978

….no treaty providing for any

increase in the powers of the
European Parliament would be
ratified by the UK without being
first approved by the Parliament.
 Maclaine Watson v. Department of
Trade & Industry, 1989

• As a matter of the constitutional law of the

United Kingdom, the royal prerogative, whilst
it embraces the making of treaties, does not
extend to altering the law or conferring rights
on individuals of rights which they enjoy in
domestic law without the intervention of
Parliament.
 That is because….
Treaty making is an executive Law Making is the legislative
function of the state function

Ratifi
Signa
catio
ture
n
 Treaties requiring Parliamentary
consent
(a) Treaties which affect the right of British subjects;
(b) Treaties which amend or modify common law or
statute law of Britain;
(c) Treaties which confer additional powers on the
Crown;
(d) Treaties which impose additional financial burden
on the government
(e) Treaties which specifically provide that
Parliamentary consent is required.
(f) Treaties which cede the British territory.
Methods of inclusion
Inclusion of
treaty in a
statute

Tangential
Reference in a
statute

Scheduling to Specific
the relevant
Act legislation
Statutory referral
to the definitions
contained in a
treaty
 In re Berubari Union and
Exchange of Enclaves, 1960
 Settlement of boundary dispute
• The treaty making power has to be exercised as
contemplated in the Constitution itself.
• An adjustment of boundary which
international law regards as valid between two
nations, should be recognized by the courts and
the implementation can be with the executive.
• In case of cession, specific legislation is
required.
 The kinds of treaties
Self-Executing

Non-Self Executing
Easy transition

Intervening Act is required

Does not need specific legislation

It can come into effect only

through statutory enactment
 Sei Fuji v. California

Facts
●
Plaintiff- a Japanese purchased some land in California.
●
The land was escheated to the state under the law of
California.

The ●
The UN Charter endorsed promoting human rights
and fundamental freedoms without racial
question discrimination, thereby superseding Californian law.

●
Charter provisions with respect to owning property
The Court ●
are non-self executing.
A treaty does not automatically supersede local law.
 Therefore…
• Even though ‘respectful consideration’
should be given to the interpretation of an
international treaty but in the absence of a
clear and express statement to the
contrary, the procedural rules of the
forum State govern the implementation of
the treaty in that State.
Jolly George Verghese v. Bank of
Cochin
 The main issue
• Art.11 No one shall be imprisoned merely
on the ground of inability to fulfill a
contractual obligation.
• Sec.51 provided for arrest and detention
in prison in execution of the decree.
• Whether the judgment debtor could be
arrested and detained in civil prison in
execution of money decree.
 The Court
• The positive commitment of the
States Parties ignited legislative
action at home but does not
automatically make the
Covenant an enforceable part of
the corpus juris of India.
Civil Rights Vigilance Committee v. UOI
 Gleneagles Accord, 1977
• The Government of India signed the
Gleneagles Accord of 1977, entered into
by the member countries of the
Commonwealth wherein they reaffirmed
their full support for the international
campaign against apartheid.
 The Supreme Court
• Art.51 is not enforceable by any court and if the
Parliament does not enact any law for implementing
the obligations under a treaty entered into by the
Government of India with foreign countries, courts
cannot compel Parliament to make such law. In the
absence of such law, court cannot also, in our view
enforce obedience of the Government of India to its
treaty obligations with foreign countries…
Vellore Citizen’s Welfare Forum v. Union
of India
 Sustainable
Developmen
t

Polluter-
These Pays
are part of
Cust. Int. Law
Principle
and hence have
full legal force in
India

Precaution
ary
Principle
Vishakha v. State of Rajasthan
 The Court observed
“In the absence of domestic law occupying the field to
formulate effective measures to check the evil of
sexual harassment of working women at all work
places, the contents of International Conventions and
norms are significant for the purpose of interpretation
of the guarantee of gender equality, right to work with
human dignity in Articles 14, 15, 19(1)(g) and 21 of
the Constitution and the safeguards against sexual
harassment implicit therein.”
 “Any international convention not
inconsistent with the fundamental rights
and in harmony with its spirit must be read
into those provisions to enlarge the
meaning and contents thereof, to promote
the object of the Constitutional
guarantee.”
 Apparel Export Promotion
Council v. A.K.Chopra

The Courts are under an obligation to see

the message of the international
instruments is not allowed to be drowned.
 Observations
• In cases involving violation of human
rights the courts must forever remain alive
to the international instruments and
conventions and apply the same to a given
case when there is no inconsistency
between international norms and the
domestic law occupying the field.
 P.Geetha v. Kerala
Livestock Development
Board, 2014
 The Central Issue

• Whether, in the face of a particular legislative

field having been occupied by an extant
domestic enactment, the International Law
Conventions and treaty obligations can be
enforced through Municipal Courts.
 The Kerala High Court
• India is “jurisprudentially dualist”.
• The statutory enactments in India (like the
Maternity Benefit Act) envisages the benefits
to a woman under “normal circumstances”.
• But India is a signatory to several conventions
& progressive interpretation is the need of the
hour.
• There is no statute which declares Surrogacy
as illegal.
 Therefore….
• The petitioner is entitled to all the benefits
an employee could have on post-delivery,
sans the leave involving the health of the
mother after the delivery.

• In other words, the child specific statutory

benefits, in any, can, and ought to, be
extended to the petitioner.
 Thus, following conclusions could
be derived
(1) Customary rules of international law are treated to be par
of domestic law in a large number of states and if they do
not conflict with existing municipal law, there is no need of
their specific adoption.

(2) In matters of treaty obligations, India (specifically) has a

dualist framework.
The role played by the Judiciary
 However….
• There is a lack of coordination among various
Government departments in respect of
effectuation of treaty principles into the
municipal law of India.
MV Elizabeth & Others v. Harwan Investment and Trading Pvt. Ltd.

• This has affected not only the ratification process,

but also getting them incorporated into municipal
law of India.
***