In a world where globalisation has become a constant, law systems can no longer exist in isolation. International law is very instrumental in the development of domestic law, especially in the field of human rights, the environment, trade and humanitarianism. Although the applicability of international law has been challenged because of the difficulties in its application, its impact on the national legal systems, particularly on judicial interpretation, has been noteworthy. India is a fascinating case study in this respect since the constitutional system of India is indicative of formal, though the judicial system has slowly adopted a more pragmatic and interpretative approach to international law.
Different aspects of International Law
International law can be classified into Public International Law and Private International Law. Public International Law regulates any legal relations between States and international organisations, and deals with such issues as treaties, human rights, armed conflicts, diplomacy and international responsibility. The Conflict of Laws is also referred to as Private International Law, which addresses the disputes involving the relationship of a foreign element between the person or entity of the parties. It decides the jurisdiction issues, the law of choice and whether foreign judgments should be recognised and enforced.
Enforcement of International Law and its Present Scenario
The applicability of international law is mostly discussed with regard to its enforcement at the local scale. Nevertheless, according to the principle of pacta sunt servada, it is in good faith that the States must respect their international commitments, even in the case when this obligates them to make amendments to their national laws. When a State does not ensure the compliance of its municipal law with the international commitments, it might not be acquitted of non-compliance, and it can be held internationally liable.
The connections between international law and domestic law have always been conventionally described in terms of monism and dualism theories. Under monism, international law and municipal law are considered to be the same system of law, where international law is automatically incorporated by national law in case of ratifying it. The domestic law in such systems is frequently regarded as inferior to international law, and the treaties may be directly applied by national courts.
In its turn, dualism perceives international law and municipal law as two different and independent legal systems functioning on different levels. In this method, the international law does not necessarily apply at home and requires translation to municipal law by way of legislation before the courts can apply it.
Role of International Law in India
India is conventionally a dualist State. The status of international law in the domestic legal system is not clearly stated in the Indian Constitution, and it does not empower the courts to interpret international law directly. It is the executive that has the power to sign treaties, and their domestic application must be Parliamentary. This status is constitutional in Article 253, which authorises Parliament to make legislation to enforce international treaties, agreements, and conventions. Therefore, the international law is not binding in India unless helped by the enabling laws.
Effects of International Law in Indian Courts
Indian courts have confirmed this formal dualism in a number of cases. In Jolly George Varghese v. Bank of Cochin, Justice Krishna Iyer, holding the bench, noted that until the amendment of municipal law to take treaty obligations, the domestic law will be applicable over international treaties before the court. Equally, in State of West Bengal v. Kesoram Industries Ltd., the Supreme Court of India had stated. that an Indian treaty cannot be the law of the land unless the Parliament makes a law under Article 253. Already, in A.D.M. Jabalpur v. Shivakant Shukla, the Court obliquely upheld the arguments that international law could not override domestic law unless it was incorporated
In spite of such a formal dualist tradition, the Indian judiciary has gradually abandoned the formal or structural monism in favour of a functional or interpretative monism, especially when it comes to an issue of fundamental rights. The courts have been relying on international law as a persuasive instrument to give meaning to the stipulations of the constitution, as long as those norms do not contradict the local laws.
Impact of International Law in Judicial Decisions
One of the milestones is a case named Vishaka v. State of Rajasthan (1997). When domestic laws concerning sexual harassment at the workplace were not available, the Supreme Court made use of international conventions, especially the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to frame the Vishaka Guidelines. The Court determined that international conventions and norms can be imported into domestic law where there is no adverse legislation, which is a landmark in judicial application of international law.
Likewise, in the case of People’s Union for Civil Liberties v. Union of India, the Supreme Court restated that treaties cannot be directly enforceable except when they have been integrated into the municipal law. It did, however, understand that international instruments could be consulted in explaining domestic law, particularly in cases where there is ambiguity. These rulings prove that although international law is not enforceable per se, it still has a significant role in interpretation in the Indian courts.
There is an Indian Constitution that confesses adherence to international law and to morality. It was adopted in 1950 and was highly affected by the principles of the Universal Declaration of Human Rights (UDHR). The Directive Principle of State Policy in Article 51(c) guides the State in encouraging the respect of international law and treaty obligations. Despite the fact that this is not justiciable, this is a significant guiding principle.
It is important to note that Article 51(c) specifically mentions international law, as well as treaty obligations, which suggests that customary international law is not perceived as the same as binding treaties. Prof. C.H. Alexandrowicz and other scholars would take this difference as the treatment of both sources as equal. However, the Constitution does not emerge from the specific domestic position of international law, and it is rather a matter of judicial discretion when it comes to its application.
Scholars are of the opinion that the hard monism/dualism dichotomy is not a true indication of State practice. Gerald Fitzmaurice noted that international and domestic law models each exist in their own world of operation, and although conflict of obligation might occur, States cannot use domestic law to excuse violation of international obligation. Non-conformity leads to international accountability regardless of local legal limitations.
Concluding Remarks
The importance of international law in the Indian courts does not consist of its direct enforceability but in its persuasive and interpretative capacity. Although the constitutional system of India is an expression of formal dualism, the practice of the judiciary indicates a sensitive and practical approach which is more oriented to establishing a correspondence between domestic law and international norms, especially in the area of protection of fundamental rights. The need to integrate global legal commitments with constitutional values has been achieved through international law to address the gaps in Indian laws and the interpretation of the Constitution by the Indian courts. Therefore, international law in India does not act as a rival; it serves as a supplementary power- directing, educating and empowering the local system of law in a globalised world.
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