what every indian should know about international laws

TEJASWINEE ROYCHOWDHURY 1

WHAT EVERY INDIAN SHOULD

KNOW ABOUT INTERNATIONAL

LAWS

By Tejaswinee Roychowdhury

B.A.LL.B. (Hons), Department of Law, University of Calcutta

Semester 1- M.A. in Business Laws (Intellectual Property and Cyber Laws),

WBNUJS

Written while pursuing the NUJS MA in Business Laws. In this paper, I attempt

to give the basic introduction to international law, visit its branches and

concepts and examine them in relation to the municipal laws of India. It is well

known that India is a signatory to most international conventions and treaties

but there are no direct statutory provisions acknowledging the same. Therefore,

for Indians to know all about international laws, its highly recommended to

depend on the Constitution of India and various judicial pronouncements. Some

Human Right statutes are direct reflections of Universal Declaration of Human

Rights and we will visit that was well along with environmental law statues

inspired by the various international conventions on the same.

http://startup.nujs.edu/


INTRODUCTION

International Law is a concept that has developed over time through international relations

and trade between various countries. The present day international law owes its origin to

Grotius, a learned Jurist and the “Father of International Law”, in his work De Jure Belli

Ac Paces in 1625. Jeremy Bentham, an eminent British Jurist, used the term ‘international

law’ for the first time in 1780. There is no single universally accepted definition of

International Law. However, many jurists have attempted to define it.

Oppenheim – “Law of Nations or international law is the name for the body of customary

and conventional rules which are considered legally binding by civilized States in their

intercourse with each other.”

QUEEN V. KEYN [1], Lord Coleridge, C. J. – “The law of nations is the collection of

usages which civilized States have agreed to observe in their dealings with one another.”

Starke – “International Law may be defined as that body of law which is composed for its

greater part of the principles and rules of conduct which States feel themselves bound to

observe, and, therefore, do commonly observe in their relations with each other, and which

includes also:

(a) The rules of law relating to the functioning of international institutions/organizations,

their relations with each other, and their relations with State and individuals; and

(b) Certain rules of law relating to individuals and non-State entities so far as the rights

and duties of such individuals and non-State entities are the concern of the

international community.”

Therefore, international law is a body of norms, usages, rules and regulations, which is

constantly evolving whilst being observed by the members of the international community to

maintain a healthy relation with each other. These norms confer rights and impose obligations

on the States, international organisations and to some extent, individuals.

The Present Scenario –

After the World War I, the countries collectively felt the need for international peace and

security and this need was accelerated and reached greater heights after the abhorrent

outcome of World War II. Today, international law is maintained and governed by the

United Nations Organisations (UNO), organised in 1945. Prior to it, the League of Nations

was organised in 1919 to observe and uphold international peace and security.

Therefore, if International Law was to be defined with respect to the present scenario,

international law, is a body of norms, usages, rules and regulations, which is constantly

evolving whilst being observed by the members of the international community to maintain a

healthy relation with each other and uphold international peace and security.


BASIC TENETS OF INTERNATIONAL LAW

The basic tenets of International Law are the rules to look to when the international treaties or

statutes do not provide an application. According to Professor Janis of the University of

Connecticut Law School, “the basic notion is that a general principle of international law is

some proposition of law so fundamental that it will be found in virtually every legal system.

When treaties and customary international law fail to offer a needed international rule, a

search may be launched in comparative law to discover if national legal systems use a

common legal principle. If such a common legal principle is found, then it is presumed that a

comparable principle should be attributed to fill the gap in international law.” [2]

According to Article 38 of the Statute of the International Court of Justice,

1. The Court, whose function is to decide in accordance with international law such

disputes as are submitted to it, shall apply:

(a) international conventions, whether general or particular, establishing rules

expressly recognized by the contesting states;

(b) international custom, as evidence of a general practice accepted as law;

(c) the general principles of law recognized by civilized nations;

(d) 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.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et

bono (considerations of fair dealing and good faith), if the parties agree thereto

(compromise, conciliation, etc., which may be independent of or even contrary to

law).

As can be seen, these are not only the sources of International Law, but also the principles on

which they are based. An authoritative order of the use of the sources of international law is

given in Article 38. Thus, the court is expected to apply the above sources in order in which

they appear. [3]

Article 51 in the Part IV (Fundamental Duties) of the Constitution of India provides –

“Promotion of international peace and security. – 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

(d) encourage settlement of international disputes by arbitration.”


Article 51 of the Constitution had its source and inspiration in the Havana Declaration of 30

November 1939. The first draft (draft Article 40) provided: “The state shall promote

international peace and security by the prescription of open, just and honourable relations

between nations, by the firm establishment of the understandings of International Law as the

actual rule of conduct among governments and by the maintenance of justice and scrupulous

respect for treaty obligations in the dealings of organized people with one another”. With the

acceptance of amendments moved by Dr. Ambedkar, H.V. Kamath, Ananthasayanam

Ayyangar and P. Subbarayan, draft Art. 40 was adopted by the Constituent Assembly in its

present form as Article 51. During the debate, all the speakers emphasized commitment of

India to promoting International Peace and Security and adherence to principles of

International Law and Treaty obligations. [4]

It is, thus, clear that the Indian Legal System expressly states that India and Indians will

respect international relations and uphold international peace and security. Now, let us visit

the basic principles of international law and study them in relation to the Indian legal system.

INTERNATIONAL CUSTOMS

According to the Article 38 of the Statute of the ICJ, the two requirements for the existence

of customs include a sufficiently uniform State practice and the opinio juris (the belief that

such a practice is obligatory). In the PACQUETE HABANA CASE [5], the U.S. Supreme

Court examined the State laws and practices, treaties, writings of publicists evidencing usage,

and decisions of court, and held that these materials uniformly proved existence of a valid

customary rule giving immunity to small fishing vessels. Further, the ASYLUM CASE [6]

shows that international law recognised the existence of a special custom or local custom.

The S. S. LOTUS CASE [7] demonstrates that the opinio juris is essential to the creation of a

new customary rule of international law. Further, a provision of a treaty may also generate a

rule of customary international law, as held in the NORTH SEA CONTINENTAL SHELF

CASE. [8] the RIGHT OF PASSAGE CASE [9] states that a treaty provision practised for a

long time may become a custom. [10]

The Indian Practice

Indian Courts follow the English practice in this regard, believing that the international

customary rules are ipso facto part of the Indian Law and do not require specific

incorporation. [11] This is not just because India is a member of the UNO. This case took

place in 1907 when the UNO was not in existence and neither was the League of Nations.

However, during that time, laws of the sea were well in existence. They were more like

customs followed by the States during trades. The exact words in the Judgment of

ANNAKUMARU PILLAI V. MUTHUPAYAL AND ORS. [12] are as under –


“18. ..it is to be observed that having regard to the fact that the rule as to the

territorial waters of a country is founded on the principle that a proper margin is

absolutely necessary for the safety and convenience of every country bordering on

the sea and having regard to the fact that the limit of a marine league was arrived at

with reference to the shooting power of cannons in former times, while those now in

use are of a much longer range; doubts have been raised as to the propriety of

maintaining this any longer as the proper limit (Hall's International Law; 4th Ed., p.

160). "In 1894 the Institute de droit International exhaustively discussed the question

and there was no decision or opinion as to the necessity of giving a greater breadth to

the Zone, a decided majority favouring a Zone 6 miles from low water-mark as

territorial for all purposes with the right in a neutral state to extend it in time of war

to a distance from shore equal to the longest range of modern guns ". (Taylor's

International Public Law, p. 294; see also Hall's International Law, p. 161, note.) But

in the absence of a distinct international concert on the point, the ordinary limit of

territorial waters in the open sea should, I presume, be taken to be that referred to

above, subject perhaps to the qualification, according to the decision of the

Supreme Court of the United States in Manchester v. Massachusetts 139 U.S. App.

at p. 240 (already referred to), that " all Governments for the purpose of self-

protection in time of war or for the prevention of frauds on its revenue exercise an

authority beyond this limit."”

These words not only prove the existence of customs followed by the trading States but also

serve as a source for judicial decision. A State is a part of the international society and to live

in harmony, it is ethical for the States to follow the customs which promote such harmony.

There is, however, a question of whether domestic law or international law should be given

preference in deciding questions of international law. This question was answered by Justice

Chinnappa Reddy in GRAMOPHONE CO. OF INDIA LTD. V. B. B. PANDEY [13] in the

following words –

“The comity of nations requires that rules of international law may be

accommodated in the municipal law even without express legislative sanction. If in

respect of any principle of international law, the parliament says ‘no’, the national

court cannot say ‘yes’. National court shall approve international law only when it

does not conflict with national law. National courts being organs of the State and

not organs of international law must per force apply national law if international

law conflicts with it.”

Thus, mere international customs are not absolute in their application to the Indian Legal

System.

INTERNATIONAL TREATIES

In the modern era, international treaties are of utmost importance. Article 38 of the Statute

of ICJ lists ‘international conventions whether general or particular, establishing rules


expressly recognized by the contesting States’ as the first source of international law.

‘Convention’ implies treaties, conventions, protocols, agreements, etc. There are law-making

treaties and there are treaty-contracts. Examples of law-making treaties include 1958 Geneva

Convention on the Law of the Sea, Vienna convention on the Law of Treaties, 1969, etc.

Treaty-contracts are usually between two or more States binding only them. A series or a

recurrence of treaties laying down a similar rule may produce a principle of customary

international law. [14]

Oppenheim states – “International treaties are agreements of a contractual character

between States or organizations of States creating legal rights and duties.” Further,

according to the Article 2 of the Vienna Convention, 1969 – “A treaty is an agreement

whereby two or more states establish or seek to establish relationship between them governed

by international law.” Article 3 further clarifies that international organisations may also

conclude treaties. Lauterpacht stresses on the statement – “treaties are legally binding

because there exists a customary rule of international law that treaties are binding.” The

basis of the binding force of treaties is pacta sunt servanda meaning ‘States are bound to

fulfil in good faith the obligations assumed by them under treaties’ (sanctity of contracts).

The Indian Practice

In India, constitutionally speaking, treaty-making is an executive act. Entry 14, List I read

with Article 246 of the Constitution of India makes it crystal clear that the power to make

laws with respect to implementation of international treaties rests with the Union

Government. Article 253 further states – “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.” Article 53 vests the executive power of the Union with the President of India.

Article 73 says that the executive power of the Union extends to exercising all powers

accruing to the Government of India from any International Treaty or Agreement. [15]

Regarding international treaties and their implementation in India, there are two prevailing

judicial attitudes. One attitude is that the treaties shall not be binding upon the courts unless

there are incorporated and implemented by the legislature of India. The other attitude is

opposed to this one where it is believed all treaties no dot necessarily require implementation

by the legislature of India.

The First Attitude –

According to this attitude, the treaties shall not be binding upon the courts unless there are

incorporated and implemented by the legislature of India. In SHIV KUMAR SHARMA V.

UOI [16], Justice S. K. Kapoor emulated this attitude in the following words –


“17. This then takes me to the other argument of the learned counsel for the

petitioners that a treaty can be implemented only by legislation. Mr. Bobde referred

us to Attorney-General for Canada v. Attorney-General for Ontario (1937) A. C. 326

:(AIR 1937 Pc 82), in support of this proposition. ... It was observed- "Their

Lordships, having stated the circumstances leading up to the reference in this case,

are now in a position to discuss the contentions of the parties which were summarized

earlier in this judgment. 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."

20. The position, to my mind, appears to be this that if a treaty either requires

alteration of or addition to existing law, or affects the rights of the subjects, or are

treaties on the basis of which obligations between the treaty-making State and its

subjects have to be made enforceable in municipal Courts, or which, involves

raising or expending of money or conferring new powers on the Government

recognizable by the municipal Courts, a legislation will be necessary. Of course, if it

involves cession of territory then so far as India is concerned constitutional

amendment may also be necessary. It is not possible to prepare an exhaustive list as

to which treaties can be implemented by legislation and I will not attempt to do so.

There may be other treaties where implementation by law is necessary and therefore

the Privy Council decision cannot be treated as an exhaustive statement of law on the

subject. To my mind, one thing is however clear that where the implementation of a

treaty merely involves the ascertainment of the disputed boundaries with a foreign

State, no legislation would be necessary. Legislation in the instances mentioned

heretofore is necessary because in India treaties do not have the force of law and

consequently obligations arising there from will not be enforceable in Municipal

Courts unless backed by legislation. Settlement of dispute as to boundary raises no

such obligation requiring implementation in Municipal Courts, Cases may arise

where a domestic law is in express terms extended to a named city and that city as a

result of a treaty, settling a dispute like the present, has to be handed over to another

country. In that case legislation may be necessary.”

This attitude was also taken up in MAGANBHAI V. UOI [17] and in JOLLY VERGHESE

V. BANK OF COCHIN [18] where it was held – “The positive commitment of the State

parties ignites legislative action at home but does not automatically make the covenant an

enforceable part of the Corpus juris of India.” [19]


The Second Attitude –

According to this attitude, it is believed all treaties no dot necessarily require implementation

by the legislature of India. For instance, where cessation of territory is required in an

agreement, legislative enactment would be necessary. This attitude was adopted by the

Supreme Court in BERUBARI UNION CASE NO. 1 [20] where it was held by Justice

Gajendragadkar that Constitutional Amendment is necessary to give effect to the Indo-Pak

Agreement on the Berubari Union, in the following words –

“34. What then is the nature of the treaty-making power of a sovereign State? That is

the next problem which we must consider before addressing ourselves to the questions

referred to us for our opinion. As we have already pointed out it is an essential

attribute of sovereignty that a sovereign state can acquire foreign territory and can,

in case of necessity, cede a part of its territory in favour of a foreign State, and this

can be done in exercise of its treaty-making power. Cession of national territory in

law amounts to the transfer of sovereignty over the said territory by the Owner-State

in favour of another State. There can be no doubt that such cession is possible and

indeed history presents several examples of such transfer of sovereignty. It is true as

Oppenheim has observed that "hardship is involved in the fact that in all cases of

cession the inhabitants of the territory who remain lose their old citizenship and are

handed over to a new sovereign whether they like it or not" (Oppenheim's

"International Law" - by Lauterpacht, Vol. I, p. 551 (8th Ed.)); and he has pointed out

that "it may be possible to mitigate this hardship by stipulating an option to emigrate

within a certain period in favour of the inhabitants of ceded territory as means of

averting the charge that the inhabitants are handed over to a new sovereign against

their will" (p. 553). But though from the human point of view great hardship is

inevitably involved in cession of territory by one country to the other there can be no

doubt that a sovereign state can exercise its right to cede a part of its territory to a

foreign state. This power, it may be added, is of course subject to the limitations

which the Constitution of the state may either expressly or by necessary implication

impose in that behalf; in other words, the question as to how treaties can be made

by a sovereign State in regard to a cession of national territory and how treaties

when made can be implemented would be governed by the provisions in the

Constitution of the country. Stated broadly the treaty-making power would have to

be exercised in the manner contemplated by the Constitution and subject to the

limitations imposed by it. Whether the treaty made can be implemented by ordinary

legislation or by constitutional amendment will naturally depend on the provisions

of the Constitution itself. We must, therefore, now turn to that aspect of the problem

and consider the position under our Constitution.

35. In dealing with this aspect we are proceeding on the assumption that some

legislation is necessary to implement the Agreement in question. It is urged on behalf

of the Union of India that if any legislative action is held to be necessary for the

implementation of the Agreement a law of Parliament relatable to Art. 3 of the


Constitution would be sufficient for the purpose; and if that be so, there would be

no occasion to take any action under Art. 368 of the Constitution.

51. We have already held that the Agreement amounts to a cession of a part of the

territory of India in favour of Pakistan; and so its implementation would naturally

involve the alteration of the content of and the consequent amendment of Art. 1 and

of the relevant part of the First Schedule to the Constitution, because such

implementation would necessarily lead to the diminution of the territory of the

Union of India.”

The Court followed the American Practice regarding the distinction between ‘self-executing’

and ‘non-self-executing treaties’ in MAGANBHAI ISHWARBHAI PATEL V. UOI [21] as

per Justice Shah –

“(i) The Constitution of India makes no provision making legislation a condition of

the entry into an international treaty in times of war or peace. The executive is qua

the State competent to represent the State in all matters international and may incur

obligations which in International Law are binding upon the State. There is a

distinction between the formation and the performance of the obligations

constituted by a treaty. Under the Constitution the obligations arising under the

agreement or treaties are not by their own force binding upon Indian nationals or

others. The power to legislate in respect of treaties lies with the Parliament and

making of law under that authority is necessary when the treaty or agreement

operates to restrict the rights of citizens or others or modifies the laws of the State.

If the rights of the citizens and others which are justiciable are not affected, no

legislative measure is needed to, give effect to the agreement or treaty. [299 D-F]

The Parliament Belge, [1879] 4 P.D. 129, Walker v. Baird, [1892] A.C. 491 and

Attorney-General for Canada v. Attorney- General for Ontario, [1937] A.C. 326,

referred to. The argument that power to make or implement a treaty agreement or

convention can only be exercised under authority of law proceeds upon a

misreading of Art. 253. The effect of Art. 253 is that if a treaty agreement or

convention with a foreign State deals with a subject matter within the competence

of the State Legislature, the Parliament alone has, notwithstanding Art. 246(3) the

power to make, laws to implement the treaty agreement or convention. In terms the

Article deals with legislative power; thereby power is conferred upon the Parliament

which it may not otherwise possess. But it does not seek to circumscribe the extent

of the executive power conferred by Art. 73; the exercise of this power must be

supported by legislation only if in consequence of the exercise of the power, rights

of citizens or others are restricted or infringed or laws are modified. [299 G-300

C]”

Similarly, the Supreme Court held in BIRMA V. STATE [22] and in NANKA V. GOVT. OF

RAJASTHAN [23] that in case of extradition treaties which entail infringement of

constitutional rights to life and liberty under Article 21 of the Constitution, legislative action

is necessary. [24]


BRANCHES OF INTERNATIONAL LAW

The branches of international law are quite diverse. We will only discuss those branches that

have in some way influenced Indian legislations and judicial decisions.

STATE RECOGNITION

According to Philip Jessup, “recognition means that an existing State acknowledges the

political entity of another State, by overt or covert act.” It is important to know what

constitutes a State. According to the Montevideo Convention, 1933, a ‘State’ should possess

four qualifications – permanent population, definite territory, government and capacity to

enter into relation with other states (sovereignty). Jessup further says, “very often

recognition is said to be apolitical diplomatic function.” Recognition may be express or

implied, conditional or pre-mature. The two modes of recognition are – de facto recognition

(provisional and temporary recognition) and de jure recognition (formal recognition).

The Indian Practice

India conforms to the international practice of state recognition. When it came to recognizing

the Statehood of various States, India had accorded recognition as soon as the conditions of

Statehood had been fulfilled. As a matter of prevailing strategy, India attached primacy to de

facto recognition. For instance, India was the first State to recognize Bangladesh and this

recognition was on a de facto basis. India is generally known for recognizing de facto.

Another prominent characteristic of the recognition policy of India is that it has adopted the

broader version of Stimson Doctrine. According to Wikipedia, “the Stimson Doctrine is a

policy of the United States federal government, enunciated in a note of January 7, 1932, to

Japan and China, of non-recognition of international territorial changes that were executed

by force. The doctrine was an application of the principle of ex injuria jus non oritur.” [25]

Thus, India has, strategically, denounced illegal territorial acquisitions and unlawful

governments. By recognising Israel in 1950 and not establishing any diplomatic relations

whatsoever till 1992, India proved that she marks a clear line of distinction between

recognition as a legal act and recognition as a political act. The recognition of Palestine

Liberation Organisation (PLO) affirms India’s strong commitment to the principle of self-

determination and its long-standing support to national liberation movements. [26]


LAW OF THE SEA

The law of the sea evolved around the times of Grotius, i.e., it evolved during the very

inception of the concept of international law. The law of the sea owes its origin to the age old

system of trading via and on the high seas. The laws were observed as customs by the various

States. However, there were a lot of conflicts. To resolve them, the two U.N. Conferences on

the Law of the Sea were held in Geneva in 1958 and 1960. In the 1958 Geneva Conference

on the Law of the Sea, four conventions were adopted – (i) Convention on the Territorial

Sea and Contiguous Zone, (ii) Convention on the High Seas, (iii) Convention on Fishing

and Convention of Living Resources, and (iv) Convention on the Continental Shelf.

However, problems persisted which led to the Third U.N. Conference on the Law of the

Sea, the longest known convention in the history of international law. The matters on which

laws of the sea were made are – breadth of territorial sea, rights of States over territorial sea,

contiguous zone, continental shelf, exclusive economic zone, and hot pursuit (right of search

and seizure on high seas).

The Indian Practice

BREADTH OF TERRITORIAL SEAS – Under Section 3 of the Indian Maritime Zones

Act, 1976, the position is the same as in the 1982 U.N. Convention’s Articles 3, 5 and 7.

According to Art. 3 of the Convention, every State has the right to establish the breadth of its

territorial sea upto a limit not exceeding 12 nautical miles, measured from the baseline

determined in accordance of the Convention. Art. 5 states that the ‘normal baseline’ for

measuring the breadth of the territorial sea is the low-water line along the coast and in case of

geographical complications, it is legitimate to depart from that standard and link outermost

baselines by straight lines. Art. 7 states that a straight baseline system can be applied in case

of geographic, economic and historic considerations. [27]

RIGHTS OF STATES OVER TERRITORIAL SEA – Indian position with respect to

‘right of innocent passage’ is the same as in the 1982 Convention. This is in conformation

with the Articles 17, 18, 19, 20 and 23 of the 1982 U.N. Convention. Section 4 Para. 2 of

the Indian Maritimes Zones Act, 1976 equates warships with submarines and underwater

vehicles and enacts that such ships/vehicles can only pass through Indian territorial waters

after giving prior notice to the Central Government of India. [28]

CONTIGUOUS ZONE – Contiguous zone is that part of the sea which is beyond and

adjacent to the territorial waters of a coastal State. India in Section 5 of the Indian

Maritimes Zones Act, 1976 also adheres to the 24 nautical miles’ rule as in the Article 33 of

the 1982 U.N. Convention. In contradistinction to the Convention, security of the State is


enumerated as one of the areas where India may exercise control. The inclusion of ‘security’

in amongst the purposes of contiguous zone widens the authority of the Indian Government

over foreign ships in the contiguous zone. [29]

CONTINENTAL SHELF – The continental shelf is the extension of the land territory

beneath the sea. The Indian definition of Continental Shelf (u/Section 6 of the Indian

Maritime Zones Act, 1976) is substantially the same as under the Article 1 of the U. N.

Convention [30], except that it indicates some illustrative examples of India’s sovereign

rights over the continental shelf which include: (i) rights of exploration, exploitation,

conservation and management of all resources, (ii) right to construct and maintain artificial

islands, offshore terminals, etc., (iii) right to scientific research, and (iv) right to protect

marine environment and control marine pollution. As to delimitation of the continental shelf,

Section 9 of the Indian Maritime Zones Act, 1976, provides that maritime boundaries

should not extend beyond the equidistance line, in the absence of any agreement between

parties. [31]

EXCLUSIVE ECONOMIC ZONE (EEZ) – Section 7 of the Indian Maritime Zones Act,

1976 also adopts the 200 nautical miles EEZ as provided in the Article 57 of the 1982 U.N.

Convention. However, the limit of EEZ may be altered in India, after having regard to

international limit of EEZ, by notification in the Official Gazette. The notification should be

mandatorily ratified by both Houses of the Parliament. Section 7 further provides the rights

of India in her EEZ. These rights are similar to those provided in the 1982 U.N. Convention,

except some very minor variations. The Central Government is empowered to declare any

area of the EEZ to be a “designated area”. The Maritime Zones of India (Regulation of

Fishing of Foreign Vessels) Act, 1981, provides for the regulation of fishing by foreign

vessels in the maritime zones of India. There is no such provision in the 1982 U.N.

Convention. [32]

HOT PURSUIT – The right of hot pursuit is a part and parcel of the right to search and

seizure on high seas. The general rule is that the State whose flag the ship is flying has

complete jurisdiction over the ship. But this exclusive jurisdiction is subject to the exception

of the right of hot pursuit. [33] The right of hot pursuit was broadly agreed to in the League

of Nations Codification Conference, 1930 while hot pursuit on territorial waters was

codified through the Article 23 of the Geneva Convention on the High Seas in 1958. [34]

International law recognizes the right of hot pursuit on the basis that a coastal State cannot be

expected to allow a foreign ship to evade its jurisdiction by escaping into the high seas. Art.

111 of the 1982 U.N. Convention states that such pursuit may only be continued outside the

maritime zones of a State if the pursuit has not been interrupted. The position in India is the

same as recognised in international law, except for the fact the India also recognizes the right

to hot pursuit in illegal fishing. [35]


HUMAN RIGHTS LAW

The concept of human rights, imposing a responsibility on the State to respect and protect

these rights, is largely a post-1945 (World War II) phenomenon, which saw the establishment

of the United Nations (U.N.). The U.N. is the modern nidus of human rights in their rich

diversity. The protection of human rights under the United Nations consists of the following –

(i) United Nations Charter, (ii) Universal Declaration of Human Rights, 1948 (UDHR),

(iii) International Covenant on Civil and Political Rights, 1966 (ICCPR), and (iv)

International Covenant on Economic, Social and Cultural Rights, 1966 (ECOSOC). The

enforcement of human rights is something very essential. The U.N. Machineries governing

enforcement are – (i) U.N. Commission on Human Rights, (ii) various committees under

the Covenants including the Optional Protocol, (iii) various procedures under the other

general Conventions on Human Rights, such as, the Commission of Inquiry under ILO

Constitution, (iv) procedures under Conventions relating to women such as CEDAW, and

(v) recent measures for enforcement including U.N. Fund for Human Rights, U.N.

Commissioner for Human Rights, Vienna World Conference on Human Rights proposing the

post of High Commissioner for Human Rights. [36]

The Indian Practice

In India, the heritage of human rights may be traced to the Constitution of India itself. The

U.N. Charter and the UDHR influenced Part III (Fundamental Rights) and Part IV

(Directive Principles of State Policy) read with the Preamble of the Indian Constitution.

While Part III reflects the ICCPR, Part IV and the Preamble reflect the concerns under

ECOSOC. Part IV-A (Fundamental Duties) venture further into ecological and

environmental justice, gender justice and jurisprudence of compassion and common

brotherhood. India became a party to both the international Covenants by ratifying them

on March 27, 1979, but it has not ratified the Optional Protocol I to the ICCPR, which

allowed the individuals to petition against the State to the Human Rights Committee. [37]

According to Justice V.R. Krishna Iyer [38], “Textually, we have a Constitution which is

fragrant with humanism, socialism, democracy, people-oriented mandates with a benign slant

towards the suppressed human sector and a developed paradigm committed to abolition of

poverty and promotion of have-nots to a status of equality. For a variety of reasons, the

Indian State has committed itself to the essentials of the International Bill of Human Rights.”

Some of the human rights proclaimed under the UDHR, ICCPR and ECOSOC have

been specifically enumerated in the Constitution, such as – Right to life and liberty; Right

to equality; Freedom of expression, movement, association, etc.; Freedom to carry on any

occupation, trade, etc.; Freedom of religion; Right against ex post facto laws; Right to equal

pay for equal work; Right to education; Protection of children and young persons; Right to

livelihood; Rights of workers, etc. Some human rights, on the other hand, have not been


specifically enumerated but they have been recognized by the Supreme Court as a part

of existing fundamental rights, such as – Right to go abroad; Right to legal aid; Right to

speedy trial; Right to privacy; Right of prisoners to be treated with Humanity; right to know;

right to shelter; Right to compensation for violation of human rights, etc. [39] Some of the

important judicial decisions can be discussed as under.

1) ADM JABALPUR V. SHUKLA [40] – The Supreme Court held –

“If two constructions of the Presidential order were possible, the court should lean in

favour of a view which does not result in such consequence. The construction which

does not result in such consequences is not only possible, it is also pre-eminently

possible. Equally well established is the rule of construction that if there be a

conflict between the municipal law on one side and the international law or the

provisions of any treaty obligations on the other, the courts would give effect to

municipal law. If, however, two constructions of the municipal law are possible, the

court should lean in favour of adopting such construction as would make the

provisions of the municipal law to the in harmony with the international law or

treaty obligations. While dealing with the Presidential Order under Art. 359(1) such

a construction should be adopted as would, if possible, not bring it in conflict with

the above Articles 8 and 9 of U.N Charter.

…According to Article 51 our Constitution, the State shall endeavour to inter alia

foster respect for international law and treaty obligations in the dealings of organised

peoples with one another. Relying upon that article, Sikri CJ. Observed in the case of

Kesavananda Bharathi v. State of Kerala (1):

"It seems to me that, in view of Art. 51 of the directive principles, this Court must

interpret language of the Constitution, if not intractable, which is after all a

municipal law, in the light of the United Nations Charter and the solemn declaration

subscribed to by India."

Articles 8 and 9 of the Universal Declaration of Human Rights in respect of which

resolution was passed by the United Nations and was supported by India read as

under:

‘ARTICLE 8 - Everyone has the right to an effective remedy by the competent national

tribunals for acts violating the fundamental rights granted him by the constitution or

by law.

ARTICLE 9 – No one shall be subjected to arbitrary arrest, detention or exile.' While

dealing with the Presidential order under article 359(1), we should adopt such a

construction as would, if possible, not bring it in conflict with the above articles 8

and 9. From what has been discussed elsewhere, it is plain that such a construction

is not only possible, it is also pre-eminently reasonable. The Presidential order,

therefore, should be so construed as not to warrant arbitrary arrest or to bar right to

an effective remedy by competent national tribunals for acts violating basic right of

personal liberty granted by law.”

2) FRANCIS CORALIE V. ADMIN., UT OF DELHI [41] – The Supreme Court held –


“…there is implicit in Article 21 the right to protection against torture or cruel,

inhuman or degrading treatment which is enunciated in Article 5 of the Universal

Declaration of Human Rights and guaranteed by Article 7 of the International

Covenant on Civil and Political Rights.”

3) VISHAKHA V. STATE OF RAJASTHAN [42] – The Supreme Court held –

“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 these provisions to enlarge the meaning and content

thereof, to promote the object of the constitutional guarantee. This is implicit from

Article 51(c) and enabling power of the Parliament to enact laws for implementing

the International Conventions and norms by virtue of Article 253 read with Entry 14

of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant.

It provides that the executive power of the Union shall extend to the matters with

respect to which Parliament has power to make laws. The executive power of the

Union is, therefore, available till the parliament enacts to expressly provide

measures needed to curb the evil.

Thus, the power of this Court under Article 32 for enforcement of the fundamental

rights and the executive power of the Union have to meet the challenge to protect the

working women from sexual harassment and to make their fundamental rights

meaningful. Governance of the society by the rule of law mandates this requirement

as a logical concomitant of the constitutional scheme. The exercise performed by the

Court in this matter is with this common perception shared with the learned Solicitor

General and other members of the Bar who rendered valuable assistance in the

performance of this difficult task in public interest.

… Gender equality includes protection from sexual harassment and right to work

with dignity, which is a universally recognised basic human right. The common

minimum requirement of this right has received global acceptance. The International

Conventions and norms are, therefore, of great significance in the formulation of the

guidelines to achieve this purpose.”

This case eventually resulted in the enactment of the Sexual Harassment of Women at

Workplace (Prevention, Prohibition and Redressal) Act, 2013.

4) DK BASU V. STATE OF WEST BENGAL [43] – The Supreme Court held –

“"Custodial violence" and abuse of police power is not only peculiar to this

country, but it is widespread. It has been the concern of international community

because the problem is universal and the challenge is almost global. The Universal

Declaration of Human Rights in 1948, which market the emergency of worldwide


trend of protection and guarantee of certain basic human rights, stipulates in Article

5 that "No one shall be subjected to torture or to cruel, inhuman or degrading

treatment or punishment." Despite the pious declaration, the crime continues

unabated, though every civilised nation shows its concern and takes steps for its

eradication.”

There are various Legislations relating to human rights in India. Some of the significant

ones can be enlisted as under –

The Immoral Traffic (Prevention) Act, 1956

The Dowry Prohibition Act, 1961 (28 of 1961) (Amended in 1986)

The Indecent Representation of Women (Prohibition) Act, 1986

The Commission of Sati (Prevention) Act, 1987 (3 of 1988)

Protection of Women from Domestic Violence Act, 2005

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013

The Workmen’s Compensation Act, 1923

The Trade Unions Act 1926

The Child Marriage Restraint Act, 1929 (19 of 1929)

The Payments of Wages Act, 1936

The Payments of Wages (Procedure) Act, 1937

The Minimum Wages Act, 1948

The Employees’ State Insurance Act,1948

The Factories Act, 1948

The Minimum Wages Act, 1950

The Protection of Civil Rights Act 1955

The Maternity Benefit Act, 1961 (53 of 1961)

The Beedi & Cigar Workers (Conditions of Employment) Act, 1966

The Equal Remuneration Act, 1976

The Bonded Labour System (Abolition) Act, 1979

Mental Health Act, 1987

National Commission for Women Act, 1990(20 of 1990)


The Protection of Human Rights Act, 1993 [As amended by the Protection of Human

Rights (Amendment) Act, 2006–No. 43 of 2006]

Juvenile Justice Act, 2000

The Child Labour (Prohibition & Regulation) Act

The Pre-Natal Diagnostic Techniques (Regulation and Prevention of misuse) Act

1994

Medical Termination Pregnancy Act, 1971

National Policy for the Empowerment of Women, 2001

ENVIRONMENTAL LAW

Environmental Law finds a place in international law as well. Environmental law has grown

as a separate area of public international law since the 1970s with the Stockholm

Conference, 1972. Today, it is one of the fastest growing areas of international law. Current

issues of international concern covered by environmental law include ozone layer

depletion and global warming, desertification, destruction of tropical rain forests, marine

plastics pollution from ships, international trade in endangered species (i.e. ivory trade),

shipment of hazardous wastes to Third World countries, deforestation of Brazil and the

Philippines, protection of wetlands, oil spills, transboundary nuclear air pollution [44],

dumping of hazardous wastes, groundwater depletion, international trade in pesticides, and

acid rain. Environmental law is also cutting across other areas of international law, such as

commercial/business law, trade, and human rights. International cooperation in the form of

treaties, agreements and resolutions created by inter-governmental organizations are being

used to protect the environment. The major organizations concerned with protection of the

environment are the United Nations Environment Programme (UNEP), the European

Union, the OECD, and the Council of Europe. Since ultimate responsibility for the

protection of the environment remains with the State, municipal laws and regulations related

to the environment are essential. [45]

The Indian Practice

The Constitution of India imposes the duty on both the state and the citizens to protect the

environmental laws in the same way as provided for in the Stockholm Declaration, OECD,

UNEP, Agenda 21, etc. Article 48A of the Constitution of India states that it is the duty of

the State “to protect and improve the environment and to safeguard the forests and wild life

of the country.” Article 51A (g) of the Constitution of India states – it is the fundamental


duty of every citizen “to protect and improve the natural environment including forests,

lakes, rivers and wild life, and to have compassion for living creatures.”

Article 21 of the Constitution of India provides the right to life which includes the right to a

healthy life as mentioned by the Supreme Court in numerous judgements. For instance, the

Supreme Court in SUBHASH KUMAR V. STATE OF BIHAR [46] held –

“Right to live is a fundamental right under Art 21 of the Constitution and it

includes the right of enjoyment of pollution free water and air for full enjoyment of

life. If anything endangers or impairs that quality of life in derogation of laws, a

citizen has right to have recourse to Art. 32 of the Constitution for removing the

pollution of water or air which may be detrimental to the quality of life.”

Similar was the opinion of the Supreme Court in MC MEHTA V. UNION OF INDIA. [47]

Further, the Eleventh Schedule of the 73rd Constitutional Amendment in 1992 empowers

the Panchayat and other local bodies to make regulations on soil conservation, water

management, watershed development, social and farm forestry, drinking water, fuel and

fodder, non-conventional energy sources and maintenance of community assets. Similarly,

the 74th Constitutional Amendment in 1992 empowers the local bodies to promote the

ecological effects of the environment.

In India, there are six laws related to environmental protection and wildlife, which are:

The Environment (Protection) Act, 1986

The Forest (Conservation) Act, 1980

The Wildlife Protection Act, 1972

Water (Prevention and Control of Pollution) Act, 1974

Air (Prevention and Control of Pollution) Act, 1981

The Indian Forest Act, 1927

All of these are influenced by the international conventions and treaties on environmental

protection.

INTELLECTUAL PROPERTY LAW

The importance of framing some sort of an internationally recognised agreement for co-

operation among the nations for the protection of intellectual property was realised as early as

the year 1883 when the Paris Convention for protection of industrial property came into

existence. The TRIPS Agreement (Trade Related Aspects of Intellectual Property

Rights) has adopted the provisions of the Paris Convention. The Paris Convention dealt with

patents, trademarks, designs and utility models but not with copyright. The Berne

Convention of 1886 was the first international convention on copyright. In the year 1947 the


General Agreement on Tariffs and Trade (GATT) came into existence. During the 1980’s

multinational corporations and international agencies began showing interest in intellectual

property as an area of discussion in the GATT. In the 1986 Uruguay Round finally the

GATT was concluded which gave rise to the WTO Agreement, TRIPS being one of them.

[48] Some of the other treaties and conventions dealing with intellectual property are –

Washington Treaty on Intellectual Property in respect of Integrated Circuits, 1989

Trade Mark Law Treaty, 1994

Patent Co-operation Treaty, 1970

Budapest Treaty on International Recognition of the Deposit of Micro-organisms for

the Purposes of Patent Procedure, 1977

Madrid Agreement concerning the International Registration of Marks, 1891

Locarno Agreement establishing an International Classification for Industrial Designs,

1968

The Indian Practice

India was not a member of the Paris Convention and so she was not obligated to it. However,

India was a signatory to the TRIPS, WTO Agreement and the Berne Convention along

with the other conventions and treaties mentioned above. While the laws on trademarks,

copyrights, designs are almost in conformity with the TRIPS Agreement, patent laws in India

are an area of concern demanding massive changes and amendments so as to facilitate the

international community to have successful trade relations with India. [49] The legislations

on intellectual property in India are –

The Copyright Act 1957

The Patents Act 1970

The Trademarks Act 1999

The Semiconductor Integrated Circuits Layout-Design Act, 2000

The Geographical Indications of Goods (Registration and Protection) Act, 1999

The Designs Act, 2000

Protection of Plant Varieties and Farmers' Rights Act, 2001

The Biological Diversity Act, 2002


CYBER LAW

Cyber Law intends to battle cybercrime on an international level aided by the national levels.

Convention on Cybercrime (Budapest Convention on Cybercrime / Budapest

Convention), is the first international treaty which globally addresses cybercrime by

harmonizing national laws, improving investigative techniques, and increasing cooperation

among nations by focusing on fraud, child pornography, cyber terrorism, hate crimes, etc.

[50] The Additional Protocol to the Convention on Cybercrime which came into force on

1st March, 2006, seeks to criminalize racism, xenophobic comments and behaviours, and the

related insults and threats through computer systems and internet.

The Indian Practice

India has ratified the above treaty. Information Technology Act of 2000 deals with cyber

law and cybercrimes in India. There are offences and punishments listed in the Act. The

offences are related to the Indian Penal Code as well [51] and are governed by the CrPC and

the Evidence Act. Recently, the International Conference on Cyber law, Cybercrime &

Cybersecurity 2016 was organized by Cyberlaws.Net and Pavan Duggal Associates,

Advocates on 17th & 18th November, 2016 at New Delhi, India. [52] It was supported by the

Ministry of Electronics & Information Technology, UNODC, Interpol, Council of

Europe, amongst others.

LAW OF ARBITRATION AND INSOLVENCY

Both international arbitration and insolvency is highly dependant on the UNCITRAL Models.

Though the two may seem like two distinct branches, they are best seen together. This is

because the best way to resolve disputes on international insolvency is through arbitration,

which to handle international insolvency needs to be drafted in an international essence. Both

these laws fall flat without independent domestic legislations as they are co-dependant. The

UNCITRAL merely sets the rules which should govern the domestic laws on insolvency and

arbitration.

The UNCITRAL Model Law on International Commercial Arbitration 1985 and the

UNCITRAL Arbitration Rules 1976 deal with international arbitration. The United

Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of

1958 (the "New York Convention") and the International Centre for the Settlement of

Investment Disputes (ICSID) also handle international arbitration.

International Insolvency, on the other hand, is handled by the UNCITRAL Model Law on

Cross-Border Insolvency 1997, and the EC Regulation on Insolvency Proceedings 2000.


The Indian Practice

The Indian law of arbitration is contained in the Arbitration and Conciliation Act 1996.

The Act is based on the 1985 UNCITRAL Model Law on International Commercial

Arbitration and the UNCITRAL Arbitration Rules 1976.

The Indian law of insolvency was previously governed by the Presidency Towns Insolvency

Act, 1909 (Applicable to Mumbai, Kolkata & Chennai) and The Provincial Insolvency Act,

1920 (Applicable to Rest of India). Then they came to be governed by the SARFAESI Act,

Sick Industrial Companies Act, Companies act, Payment and Settlement Systems Act,

Limited Liability Partnership Act, Indian Partnership Act, Central Excise Act, Customs Act,

Income Tax Act, and Recovery of Debts Due to Banks and Financial Institutions Act. [53]

Today, it is comprehensively governed by the Bankruptcy and Insolvency Code, 2016 and

it is based on the UNCITRAL Model.

CONCLUSION

(INTERNATIONAL LAW VERSUS MUNICIPAL LAW)

On the one hand, municipal law strengthens international law and makes it operative by

incorporating it into national law by legislation, while, on the other hand, international law

exerts a definite check upon municipal law and holds the States responsible or liable for their

failure to perform international obligations. [54] The question that arises is – what do the

countries do when there is a conflict between their domestic laws and the international

law?

Like British and American Courts, Indian Courts also attribute primacy to municipal law

if it is clear and unambiguous. In case of ambiguity, Indian courts follow the doctrine of

harmonious construction to avoid conflict between the two, as has been seen in all the cases

referred to in the entire paper. In the case of treaties, India follows Britain (as mentioned

above). [55]


FOOTNOTES AND CITATIONS

[1] 2 Ex. D. 63 (1876)

[2] James G. Apple, Co-Editor of the International Judicial Monitor and President,

International Judicial Academy, American Society of International Law and the International

Judicial Academy, Jul/Aug 2007, Volume 2, Issue 2

(http://www.judicialmonitor.org/archive_0707/generalprinciples.html)

[3] Subhash C. Kashyap, The constitution of India and International Law’, Bimal N. Patel

(ed.), ‘India and International Law’, Martinus Nijhoft Publishers, Leiden 2005, p.19. (cited

by Jagadish S. Halashetti in http://www.legalindia.com/the-status-of-international-law-under-

the-constitution-of-india/)

[4] Ashok K. Jain, Law Guide for Judicial Service Examinations, Vol. II, Ascent Publications

(Delhi), 4th Ed., Re-print 2015.

[5] 175 U.S. 677 (1900)

[6] Asylum Case (Colombia v Peru), [1950] ICJ Rep 266 at 276-78

[7] Permanent Court of Int’l Justice, P.C.I.J. (ser. A) No. 10 (1927)

[8] (1969) ICJ Rep. 3

[9] Portugal v India, [1960] ICJ Rep 6

[10] Ibid 4

[11] Annakumaru Pillai v. Muthupayal and Ors., ILR 1907 Mad 551

[12] Ibid 11

[13] AIR 1984 SC 667

[14] Ibid 4

[15] Jagadish S. Halashetti, The Status of International Law under the Constitution of India

(http://www.legalindia.com/the-status-of-international-law-under-the-constitution-of-india/)

[16] AIR 1968 Del 64

[17] AIR 1969 SC 783

[18] AIR 1980 SC 470

[19] Ibid 15

[20] AIR 1960 SC 845

[21] AIR 1969 SC 783

[22] AIR 1951 Raj 127

http://www.judicialmonitor.org/archive_0707/generalprinciples.html

http://www.legalindia.com/the-status-of-international-law-under-the-constitution-of-india/




[23] AIR 1951 Raj 153

[24] Ibid 4

[25] https://en.wikipedia.org/wiki/Stimson_Doctrine

[26] Ibid 4

[27] Anglo-Norwegian Fisheries Case (1951 I.C.J. Rep. 116); Ibid 4

[28] Corfu Channel Case (15 XII 49, I.C.J. Reports 1949, p. 244; General List No. 1); Ibid 4

[29] Ibid 4

[30] Article 1 of the 1982 U.N. Convention incorporates the concept of continental shelf

highlighted in the North Sea Continental Shelf Case (1969) ICJ Rep. 3

[31] Ibid 4

[32] Ibid 4

[33] Ibid 4

[34] Tejaswinee Roychowdhury, The Doctrine of ‘Hot Pursuit’ in International Law: Its

Legality and Application in the 21st Century, LetsPedia (http://letspedia.com/doctrine-hot-

pursuit-international-law-legality-application-21st-century/)

[35] Ibid 4

[36] Ibid 4

[37] Ibid 4

[38] Human Rights in India, p. 270

[39] Ibid 4

[40] AIR 1976 SC 1207

[41] AIR 1981 SC 746

[42] AIR 1997 SC 625

[43] (1997) 1 SCC 416

[44] EP v. Council (“Chernobyl”) (Case C-70/88) 1990

[45] International Environmental Law Research Guide, Georgetown University Law Library

(http://guides.ll.georgetown.edu/InternationalEnvironmentalLaw)

[46] (1991) 1 SCC 598

[47] 1987 SCR (1) 819

[48] B.L. Wadhera, Preface to the First Ed., Law Relating to Intellectual Property, Universal

Law Publishing Co. (New Delhi)

https://en.wikipedia.org/wiki/Stimson_Doctrine

http://letspedia.com/doctrine-hot-pursuit-international-law-legality-application-21st-century/

http://letspedia.com/doctrine-hot-pursuit-international-law-legality-application-21st-century/

http://guides.ll.georgetown.edu/InternationalEnvironmentalLaw


[49] Ibid 48

[50] https://en.wikipedia.org/wiki/Convention_on_Cybercrime

[51] For instance, the offence of ‘voyeurism’ through the internet such as Skype will be

punishable u/S 354C of the IPC

[52] http://cyberlawcybercrime.com/

[53] Siddharth Gossain, Key Highlights of the Bankruptcy and Insolvency Code, 2016,

LetsPedia (http://letspedia.com/key-highlights-bankruptcy-insolvency-code-2016/)

[54] Ibid 4

[55] Ibid 4

DATABASE FOR QUOTED INDIAN CASE LAWS AND JUDGMENTS

All quoted judgments of India are quoted from Indian Kanoon (https://indiankanoon.org/)

website.

https://en.wikipedia.org/wiki/Convention_on_Cybercrime

http://cyberlawcybercrime.com/

http://letspedia.com/key-highlights-bankruptcy-insolvency-code-2016/

https://indiankanoon.org/