CROSS-JURISDICTIONAL INFLUENCE IN INDIA’S IMPLEMENTATION OF INTERNATIONAL LAW – Dhriti Kawale

CROSS-JURISDICTIONAL INFLUENCE IN INDIA’S IMPLEMENTATION OF  INTERNATIONAL LAW 

ABSTRACT 

In order to compare the dualist approach of the United Kingdom with the intricate interaction  between international law and India’s local legal system, this research article attempts to  detangle them. The dialectics of dualism and monism are applied to examine India’s  constitutional and judicial management of international norms, especially in the context of  environmental law and human rights. Examined are India’s legislative procedures,  constitutional directives, and the Supreme Court’s function in interpreting and applying  international law. The research is on the unique fusion of dualist and monist ideas found in  India, which represents a diverse and evolving legal system. Using important case laws like  M.V. Elizabeth, the practical ramifications of these concepts are shown. The study ends with  observations on the cautious yet progressive interaction of the Indian Supreme Court with  international law, highlighting the necessity of more planned and cogent incorporation of  foreign legal standards into Indian legal system. This study advances knowledge of the  intricacies and dynamics of assimilation of foreign law in a nation with a rich legal history and  a wide range of legal issues. 

KEYWORDS: Indian Constitutionalism, International Law Integration, Dualism, Monism. 

I. INTRODUCTION 

International law is a crucial framework that governs the interactions between states on the  global stage, playing a major role in global governance. The concept embodies the potential  for steadfastness, organisation, and shared principles, serving as the conclusion of established  norms, agreements, and traditional behaviours. Nevertheless, the process of integrating  technology into national legal systems is challenging and varies across different countries.  Certain countries, like the United Kingdom, adopt a dualist approach, considering international  and domestic law as separate entities. Conversely, some people adhere to monism, which views  international law as an intrinsic component of domestic law. The interplay of various  viewpoints influences how a nation comprehends and executes global standards.

India, due to its history of colonisation, poses a particularly fascinating scenario in the  worldwide discussion on the integration of international law. Although India’s legal background  may imply a strong preference for a strictly dualist approach, this research paper demonstrates  that India’s interaction with international law involves a complex interplay of both dualism and  monism. India’s approach is characterised by the oscillation between various philosophies,  which adds complexity and makes it difficult to clearly define. 

The purpose of this thesis is to explore India’s involvement with international law in a  comprehensive manner. The research aims to analyse the different ways in which international  law is incorporated into India’s legal system by comparing it to the UK’s dualist paradigm. This  inquiry highlights the urgent requirement for a more unified and organised communication and  collaboration among the many branches of the Indian government. This would ensure a logical,  consistent, and well-informed approach to complying with international law. 

II. DUALISM AND MONISM IN INDIA’S LEGAL SYSTEM 

The prevailing conceptualization that international and domestic laws operate in distinct  domains, delineated by explicit normative and tangible barriers, is no longer the prevailing  framework employed to explain or analyse their interconnection. International law has evolved  from being perceived exclusively as a set of regulations governing relations between states to  being recognised as a normative framework that encompasses interactions among states, their  citizens, non-state entities, and other individuals, as well as domains that were once considered  strictly domestic¹. Given the increased frequency of transnational legal transactions in the  contemporary interconnected world, identifying specific “matters which are fundamentally  within the sole jurisdiction of a state” becomes a formidable task due to the expansive nature  of the comprehensive rules of international law. 

Monism considers domestic and international laws to be interconnected and to constitute a  single legal regime. This method incorporates international law directly into domestic law,  court application included, and without state intervention. It functions in accordance with the  local legal system. On the contrary, dualism posits that domestic and international laws are 

¹ Aparna Chandra, India and International Law: Formal Dualism, Functional Monism, 57 Indian J. Int’l L. 2 (2017).

distinct and separate entities, and does not presume that international law inevitably permeates  the domestic sphere².  

The explicit provisions governing the application of international laws within India are not  delineated in the Constitution. Although Article 51 of the Constitution prescribes that the state  should conduct its affairs in accordance with international laws and treaties, this provision is  merely advisory and lacks judicial enforceability. Article 51 evidently served as a foundational  document for India’s international relations and to guide the nation’s foreign policy; it did not,  however, prescribe how India ought to carry out its obligations under domestic international  law, as evidenced by the constituent assembly debates, which demonstrated that it was not  considered obligatory³.  

In contrasting treaty obligations with international law, Article 51(c) suggests that  “international law” could potentially pertain to customary international law. However, this does  not imply that customary international law is incorporated into Indian law automatically. This  provision is not legally enforceable by a court; its sole purpose is to promote adherence to it. 

In contrast, English law considers international law to be an integral element of domestic law,  with certain exceptions. In order for a rule of customary international law to be incorporated  into English law, it is necessary for the nation to either universally recognise or embrace it. A  comparable position is adopted by the United States⁴. 

Although the Parliament of India has the power to ratify and execute treaties, no legislation has  been enacted to do so. Conversely, India embraces the British stance regarding global  responsibilities, which is firmly grounded in Article 73 of the Constitution. Therefore, prior to  accepting international obligations, neither the Constitution nor extant statutory laws require  the Executive to obtain pre-ratification approval from Parliament. Consequently, the Executive  has the authority to assume substantial international obligations in the absence of parliamentary  approval⁵. 

The fact that the Indian Executive also manages international treaties has generated  considerable controversy. In contrast to Article 253, which grants Parliament the authority to  

² Aparna Chandra, India and International Law: Formal Dualism, Functional Monism, 57 Indian J. Int’l L. 3 (2017). 

³ B. Shiva Rao, The Framing of India’s Constitution: Select Documents, vol. 2, at 150 (Indian Institute of Public Administration, New Delhi 1967) 

⁴ V.G. Hegde, International Law in the Courts of India, 19 Asian Yearbook of International Law 63 (2013). 

⁵ V.S. Mani, Effectuation of International Law in the Municipal Legal Order—The Law and Practice in India, 5 Asian Yearbook of Int’l L. 162, 162-63 (1997).

transform international obligations into domestic legislation, Article 73 grants the Executive  Branch the unilateral authority to take said obligations in the absence of Parliament’s consent. 

Bypassing thorough public and legislative examination, the present system in India allows the  government to take on international duties without the approval of Parliament. This opens the  door for foreign laws to be incorporated into India’s legal system without thorough  examination. For instance, the Indian government changed India’s patent system when it  ratified the TRIPS agreement⁶, even though a Parliamentary Committee warned against it.  Furthermore, Parliamentary permission was not sought for a Civil Nuclear Deal with the United  States, which was seen unfavourable to India, preventing informed discussion. This highlights  the need for more democratic procedures in India’s treaty-making process.  The Indian judiciary is crucial in carrying out the execution of international law, despite the  fact that the executive branch’s extensive treaty-making authority has received most of the  focus. When Parliament and the executive branch are at odds, the judiciary, and the Supreme  Court in particular, step in to mediate a resolution. Judgements and actions of the judiciary are  important to examine because of the weight they carry when they deal with the challenges of  incorporating international law into domestic law. 

III. THE ROLE OF INDIAN AND UK COURTS IN BALANCING INTERNATIONAL  LAW AND DOMESTIC INTERESTS  

There is a wealth of material outlining the global contribution national courts make to the  implementation of international law⁷. Enforcement of international law is, according to many,  the main function of domestic courts. They are regarded to be the most trustworthy  organisations to implement and enforce international law locally. Nevertheless, this viewpoint  may be somewhat simplified, seeing international law as just being “plugged into” the home  legal system for enforcement automatically. The assumption of this “mechanical view” is that  international law will easily transfer into domestic practice. One tends to downplay the  intricacies and judgements that domestic courts have to make. There is conflict between  upholding national interests and accepting international standards as India’s economy grows  more and more interconnected. 

⁶ Commission to Review the Working of the Constitution, supra note 38 

⁷ Giuseppe Cataldi & André Nollkaemper, National Courts and the International Rule of Law, 23 Eur. J. Int’l L. 897 (2011).

When an international executive body—like the UN Security Council—imposes a decision  with criminal ramifications that the national authorities must carry out, a serious problem  results. In the historic Ahmed v. H M Treasury⁸decision by the UK Supreme Court, Mohamed  Ahmed and other British nationals were made “prisoners of the state”26 after orders inspired  by UN Security Council resolutions frozen their financial assets. This action, made possible by  the United Nations Act 1946, satisfied UK foreign duties but raised questions about individual  liberties at home. A way for people to contest these acts was absent from the international  resolutions. Basically, the Ahmed case is a perfect illustration of the difficulties and possible  disputes that might occur when interpreting international directives into domestic acts,  particularly when such activities could violate people’s rights. 

IV. M.V ELIZABETH CASE  

The M. V. Elizabeth and others v. Harwan Investment and Trading Pvt. Ltd⁹case shows how  several jurisdictions affect India’s international law. The Admiralty Court Act of 1861 and  international treaties like the Ship Arrest Convention of 1952 are used in this case to show  India’s complex relationship with international norms and domestic law. The Indian Supreme  Court had to decide if Indian courts had admiralty jurisdiction over a ship transporting goods  from India to a foreign port. Indian admiralty jurisdiction was limited by the British Admiralty  Courts Act of 1861, according to High Court rulings. The Supreme Court contradicted these  earlier findings by ruling that Article 372 of the Indian Constitution preserved colonial laws,  but they shouldn’t prevent law from evolving to meet present and future justice demands. 

The Indian party proposed that Indian courts should have admiralty powers like English courts,  a novel idea. The argument was based on an 1867 English Act that gave the High Courts of  Madras, Bombay, and Calcutta admiralty powers. The Indian party noted that an 1890 English  statute modification gave English courts jurisdiction over inbound and outbound boats. This  growth warranted this enlarged power for Indian High Courts, they claimed. Since English and  Scottish law constitute customary international law, Indian legal practice should include these  developments. 

⁸ Ahmed v. H M Treasury, [2010] UKSC 2, [2010] 2 A.C. 534, 149 I.L.R. 641. 

⁹ M.V. Elizabeth and Others v. Harwan Investment and Trading Pvt. Ltd., 1993 Supp (2) S.C.C. 433.

Despite its importance, the Supreme Court’s verdict was criticised for not addressing more  general international legal concerns. The ICJ Statute’s Article 38(1)(c)¹⁰, which emphasises  “general principles of law recognised by civilised nations,” was not invoked because the court  focused on maritime law. This can hinder the integration of Indian admiralty law into  international law. 

Article 38(1)(c)’s broad application provides a flexible yet robust foundation. Article  38(1)(b)32, which references “international custom,” should be studied alongside it to better  grasp the law. The court’s absence from this intricate interaction shows India’s  underappreciation of international law’s range of sources. An inclusive approach that included  several international law sources would have improved India’s commitment to international  norms and its reputation as a country that understands and respects global legal principles. 

In conclusion, the M.V. Elizabeth case shows India’s involvement with international legal  norms, but it also shows areas where introspection and a broader perspective could improve  international law integration in India. 

V. CONCLUSION 

Regarding international law, the relationship that the Indian Supreme Court maintains is one  that is cautious and conservative. Although it recognises international norms, particularly in  the areas of human rights and the environment, the Court frequently adheres to a predetermined  collection of sources and arguments. The Supreme Court perceives international law more as a  persuasive instrument than as a precedent that is legally obligatory. Even though it has been  incorporating international legal norms into local law, the Supreme Court has been meticulous  in its approach. Taking such a cautious approach is mostly since comprehending, locating, and  interpreting the ever-evolving norms of international law can be difficult due to the complex  process of international lawmaking. In the future, in order for the Indian courts to successfully  traverse the intricate relationship that exists between international law and local law, they will  need to adopt new tactics and interpretative frameworks that are more transparent. 

¹⁰ Statute of the International Court of Justice, art. 38, para. 1(c).