"This analysis investigates the interplay between international law and India's domestic legal framework, specifically examining how international law is legally recognized and applied within the country. While acknowledging India's substantial contributions to the field of international law, the article highlights a notable hesitancy to enter into treaties that significantly curtail national autonomy or explicitly grant domestic courts the authority to enforce international legal obligations.

The discussion delves into the practical processes involved in implementing international law within India, considering the specific requirements imposed by international law itself. Furthermore, the article critically examines the inherent tension within the Indian Constitution regarding the legal force of treaties, particularly concerning the question of which entities possess the authority to enter into international agreements.

The role of the Indian judiciary in upholding and enforcing international law is also scrutinized. Finally, the article proposes a revised legal framework aimed at enhancing the effective implementation of international law within India."

Introduction
This article investigates the legal impact of international law within India's domestic legal framework. Recognizing the sovereign right of states to enter into international treaties, agreements, and customary practices, the analysis focuses on the critical issue of how these international obligations are effectively implemented within a state's domestic legal order. The article underscores the importance of adapting to the evolving landscape of international law, emphasizing the need to respect historical understandings, fulfill current obligations, and contribute to a stable and just international order.

While acknowledging the significance of analyzing state practice as evidence of the emergence and development of international norms, the article observes a relative dearth of such scholarly work in the Indian context, likely attributable to India's strong commitment to adhering to international legal principles. The subsequent sections of this article delve into the specific mechanisms and processes through which international law is implemented within India's domestic legal system.

Purpose of the Paper
The main task of this article is to make the reader aware about globle impact on implementation of domestic laws. Changes in law is the changing need of society and thus their interpretation and application on domestic level plays vital role to make a healty balance between international laws and state laws.

Definition:
 This Article consistently employs the terms international law' and 'domestic law. To ensure clarity and facilitate reader understanding of the legal issues surrounding the implementation of international law within India's domestic legal system, it is crucial to establish working definitions for these terms.

1. International law: The United Nations defines international law as the set of rules, norms, and standards that govern the conduct in interactions together and their remedy of citizen within their borders. This encompasses a vast array of critical global issues, including human rights, disarmament, international crime, refugees, migration, nationality, the treatment of prisoners, the use of force, and the conduct of war. Furthermore, international law plays a crucial role in regulating the global commons, such as the environment, sustainable development, international waters, outer space, global communications, and world trade.
    
   International law is further divided into 2 heads:
   International law can be broadly categorized into two distinct branches:
   
   1. Private International Law: This branch primarily focuses on legal disputes involving private entities, such as individuals or corporations, with significant connections to more than one nation. For instance, the legal complexities arising from the tragic Bhopal gas leak caused by Union Carbide, a U.S. corporation, in India, fall under the purview of private international law. This area of law is crucial for resolving conflicts of national laws and determining which country's legal framework should be applied in specific cross-border situations.
       
   2. Public International Law: This branch encompasses the body of rules, principles, and norms that govern the conduct of nation-states and international organizations in their interactions with each other and with individuals. Often referred to as the "law of nations" or simply "International Law," public international law encompasses a wide range of subfields, including the law of the sea, international economic law, diplomatic law, environmental law, human rights law, and international humanitarian law.
      
      This categorization provides a fundamental framework for understanding the different facets of international law and its application in the contemporary world.
      
      This Article primarily focuses on public international law. Public international law should not be confused with private international law.
2. Domestic law, also referred to as municipal law in this article, encompasses the legal system that applies within a specific state's territory. It stands in contrast to international law, which governs the conduct of states in their relations with each other.

Theories On The Relationship Between International Law And Domestic Law:

1. The monist theory
   The monist theory posits a unified legal system where international and domestic law are fundamentally interconnected, stemming from a shared source of legal authority. Monists view these two branches of law as part of a single, overarching legal framework binding upon all individuals and entities, whether collectively or individually.
   
   A key tenet of monism is that international law does not require separate incorporation into domestic law. Upon ratification of an international treaty, it is automatically considered part of the domestic legal order. This implies a hierarchical relationship where international law takes precedence over conflicting domestic laws. Consequently, under a monist system, provisions like those found in the International Criminal Court (ICC) Statute could be directly applied and enforced by national courts.
   
   There are some exceptions to the monist approach: 1) In some Constitutions, direct incorporation of international law into domestic law occurs on ratification.2) In other States, direct incorporation occurs only for self executing treaties.
    
2. Dualism Theory
   The dualist theory posits that international law and domestic law exist as entirely separate and distinct legal systems. This perspective emphasizes that international law, with its unique character and subjects, cannot be directly applied within a domestic legal framework.

For international law to have legal effect within a country, it must undergo a process of "transformation" into domestic law. This typically involves the enactment of specific legislation by the state to incorporate the provisions of international treaties or customary international law into the domestic legal order.

The ratification of the International Criminal Court (ICC) Statute, for example, does not automatically grant it legal force within a dualist system. Domestic legislation must be enacted to implement the ICC Statute's provisions within the country's legal framework.

Many states, including India, adhere to a predominantly dualist approach, recognizing the distinct nature of international and domestic law. Under the Indian Constitution, international law generally does not become binding until it is specifically incorporated into domestic legislation through appropriate legislative acts.

Implementation Of International Law Obligations

The effective implementation of international law within a state's domestic legal system is a critical issue. A fundamental principle of international law is that states cannot evade their international obligations by citing deficiencies in their domestic law. This principle is enshrined in Article 27 of the Vienna Convention on the Law of Treaties (1969), which prohibits states from invoking internal law as justification for their failure to perform treaty obligations.

The principle of pacta sunt servanda, Latin for "agreements must be kept," underscores the duty of states to honor their international commitments, even if it necessitates changes to their domestic legislation. This principle has been consistently upheld and applied in numerous international legal cases.

Essentially, states cannot use domestic legal shortcomings as a pretext for non-compliance with their international obligations. This principle ensures the integrity of the international legal system and upholds the rule of law in international relations.

In the absence of a central legislative authority that has the power to impose binding rules upon the system's legal subjects, legal norms have been developed by the primary subjects themselves. As soon as the norms have emerged, most notably through treaties or custom, states are entrusted with enforcing imposed rules by what has been called 'self help.

Courts often face significant challenges when confronted with conflicts between rules of international law and domestic law. A key question for both international and domestic tribunals is determining the hierarchy between these two legal systems.

For domestic courts, the resolution of such conflicts hinges on the extent to which the state's constitutional framework allows for the direct application of international law. The degree to which international law is incorporated into domestic law varies significantly across jurisdictions.

Even when a rule of international law is purported to govern a particular situation, its application within a domestic court can present complex challenges. For instance, the effectiveness of diplomatic immunities granted by international law hinges on their recognition and enforcement within the domestic legal system. Without such recognition, these immunities would be rendered meaningless.

These conflicts underscore the complexities of the relationship between international and domestic law and the need for careful consideration and interpretation by courts in resolving such issues.

Constitutional Provisions For International Law

The Indian Constitution does not explicitly address the legal standing of international law within the domestic legal framework. Notably absent is any explicit requirement or authorization for the judiciary to directly invoke international law in its deliberations. However, the Constitution emphasizes a broader commitment to international law and morality within the Indian administrative sphere. It mandates that the entire Indian administration accord high regard to principles of international law and international morality.

The Indian Constitution, adopted on 26th November 1950, was greatly influenced by the values imbibed in The Universal Declaration of Human Rights (UDHR). Adopted by the United Nations General Assembly, the UDHR's primary motive is to protect and preserve the basic fundamental rights which all human beings are entitled to.

The acceptance of amendments moved by Dr. Ambedkar, H.V. Kamath, Ananthasayanam Ayyangar and P. Subbarayan, draft Article 40 was adopted by the Constituent Assembly in its present form as Article 51. All the speakers emphasized the commitment of India to promoting International Peace and Security and adherence to principles of International Law and Treaty obligations during the debate. Article 51(c) of the Indian Constitution says, foster respect for international law and treaty obligations in the dealings of organized peoples with one another.

Executive Power of the Union and International Treaties

According to the Indian Constitution, Articles 53, 73, and 253 collectively define the executive power of the Union government regarding international treaties, essentially stating that the President holds the executive power, which extends to matters arising from treaties, and Parliament has the authority to enact laws to give effect to such treaties; meaning the government can execute international agreements through the President, but needs legislative backing from Parliament to fully implement them within the country. 

• Article 53: This article vests the executive power of the Union in the President of India, who can exercise it directly or through subordinate officers.
• Article 73: This article defines the extent of the Union's executive power, stating that it includes matters related to subjects where Parliament has the power to make laws, as well as the exercise of rights and authority arising from any treaty or agreement.
• Article 253: This article explicitly gives Parliament the power to make laws for the whole of India to implement any treaty, agreement, or convention with foreign countries.

The High Court agreed with the Respondents. Relying upon the observations of Shah J. quoted above, the High Court held : "The observations made by the learned Judge establish that the executive power conferred under Article 73 is to be read along with the power conferred under Article 253 of the Constitution of India. The observation leave no manner of doubt that in case the Government enters into treaty or agreement, then in respect of implementation thereof, it is open for the Parliament to pass a law which deals with the matters which are in the State list.

In case the Parliament is entitled to pass laws in respect of matter in the State list in pursuance of the treaty or the agreement, then it is difficult to appreciate how it can be held that the Central Government is not entitled to enter into treaty or agreement which affects the matters included in the State list."
 
The supreme court has reflected a dualist approach of the Indian legal system.(case law)

1. In the case of Jolly George Verghese vs Bank of Cochin (1980), it is stated that unless the municipal law is altered to accommodate the treaty, what is binding on the court is the former and not the latter.
2. Further, the Supreme Court in the case of State of West Bengal vs Kesoram Industries (2004) reemphasized that India obeys the doctrine of dualism and stated that any treaty that has been entered into by India cannot become the law of the land unless the Parliament passes a law as under Section 253 of the Constitution of India.
3. In the landmark case of Vishaka vs State of Rajasthan (1997), the court, while drafting the guidelines on sexual harassment of women at the workplace, referred to many international conventions and norms which were relevant for the purpose of guaranteeing gender equality, right to work with dignity, and the adherence to Article 14, 15, 19(1)(g), and 21 of the Constitution.
4. In the case of Neelabati Behera vs. State of Orissa (1993), the court relied upon Article 9(5) of the Covenant on Civil and Political Rights (1966) while granting compensation to the victim for the matter of custodial death.
5. In the case of Chairman Railway Board vs. Chandrima Das (2000), the court utilized the principles of the Universal Declaration of Human Rights while widening the scope of Article 21 of the Constitution by providing security to rape victims of foreign nationals.

 

Recommendations of the Committee:

1. Asylum issues: The Domestic Laws like the Foreigners Act, 1946, the Registration of Foreigners Act, 1939, the Passport (Entry into India) Act, 1920 are legislations that govern the regulation of entry, stay and exit of foreign nationals during normal times and under normal circumstances, whereas a refugee situation demands prompt and specified response owing to the crisis nature and the urgency of response required to avoid potent humanitarian crises resulting therefrom.
    
2. Cyber Security: India endorses that common understanding on how international law is applicable to State use of ICTs is important for promoting an open, secure, stable, accessible, inter-operable, and peaceful ICT environment.
   • The European Convention on Cybercrime (Budapest Convention) is an initiative of the Council of Europe.
   • Many European Countries and a few non-EU countries are Party to the Convention.
   • India is not a Party to the Convention.
      
3. Financial Crimes: India is a member of the Financial Action Task Force (FATF), Asia Pacific Group (APG), and Eurasia Group (EUG).
   • India has always been fully complying with the FATF recommendations from time to time. The Anti Money Laundering / Counterfinancing of Terrorism (AML/CFT) regime in India is relatively young.
   • The Prevention of Money Laundering Act, 2002 (PMLA), which came into force in 2005, was further amended in 2009 following an assessment of vulnerabilities in the financial sector, to include Full Fledged Money Changers (FFMCs), Money Transfer Service Providers (MTSP), such as Western Union, and International Payment Gateways (IPG), such as Visa and MasterCard.
   • Thus, since mid-2009, India has increased its focus on money laundering and the use of the ML provisions and has progressively expanded and strengthened its preventive measures for the financial sector.

Many of these treaties particularly multilateral treaties concerning trade, investment, patents, services and agriculture are bound to have pervasive and significant implications for our legal and administrative system, our economy and on the individual rights of the citizen – indeed for our constitutional ethos as such.
 

The effect of Treaties on Indian Domestic Law

As would be evident from the decision of the Supreme Court in MaganbhaI, the Privy Council in Attorney General For Canada is being followed here. According to these decisions, the treaties entered into by the Union of India do not become enforceable at the hands of our courts and they do not become part of our domestic law.

This was so held by the Supreme Court in Jolly Verghese v. Bank of Cochin (1980 (2) SCC 360 = 1980 SC. 470 AIR). V.R. Krishna Iyer J speaking for the court held: "India is now a signatory to this Covenant and Art. 51(c) of the Constitution obligates the States to "foster respect for international law and treaty obligations in the dealings of organized peoples with one another". Even so, until the municipal law is changed to accommodate the Government what binds the court is the former, not the latter.

A.H.Robertson in "Human Rights - in National and International Law" rightly points out that international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law. From the national point of view the national rules alone count………with regard to interpretation, however, it is a principle generally recognized in national legal systems that, in the event of doubt, the national rule is to be interpreted in accordance with the State's international obligations."

The court quoted with approval the statement of law in Xavier v. Canara Bank Limited (1969 KLJ 927 at 931 and 933), a decision of the Kerala High Court, where it was held that until domestic legislation is undertaken to give effect to the letter or spirit of an international covenant or declaration, the covenant or declaration cannot be held to have the force of law and can not be enforced by the Courts in India.

D.K Basu v. State of West Bengal (1997 (1) SCC 416). The Government of India had acceded to and ratified the International Convention on Civil and Political Rights, 1966. Article 9(5) of the said Convention declares that "anyone who has been the victim of unlawful arrest or detention shall have enforceable right to compensation".

The Government of India had, however, made a reservation to this clause while ratifying the said Convention saying that Indian law does not recognize any such right. The Supreme Court however opined that "That reservation, however, has now lost its relevance in view of the law laid down by this Court in a number of cases awarding compensation for the infringement of the fundamental right of a citizen.

The question was again considered by the Supreme Court in Visakha vs. State of Rajasthan (1997) 6 SCC 241). The court was concerned in that case with the protection to be afforded to working women from sexual harassment at workplace so as to make their fundamental rights meaningful. Relying upon Articles 14, 15, 19(1)(g) of the Constitution, the court observed that "any international convention not inconsistent with the fundamental rights and in harmony with this 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 and the enabling power of Parliament to enact law for implementing international conventions and norms by virtue of article 253 read with entry 14 of the Union List in the Seventh Schedule to the Constitution. Article 73 is also relevant. It provides that the executive power of the Union shall extend to matters with respect to which Parliament has power to make laws. The executive power of the Union, is therefore, available till Parliament enacts legislation to explicitly provide the measures needed to curb the evil."

The Court relied upon the Convention on Elimination of all Forms of Discrimination Against Women (which Convention has been ratified by the Government of India on 25.06.1993 though with certain reservations) and upon the Beijing Statement of Principles of Independence of the Judiciary in the Law Asia Region.

Role of Judiciary in Treaty-making:

Judiciary has no specific role in treaty-making as such but if and when a question arises whether a treaty concluded by the Union violates any of the Constitutional provisions, judiciary come into the picture. It needs no emphasis that whether it is the Union Executive or the Parliament, they cannot enter into any treaty or take any action towards its implementation which transgresses any of the constitutional limitations.

Conclusion:
We have used this article to explore the law making statute of international law and implication on domestic law. The Indian Constitution has the basic framework for implementation of international treaty obligations in its domestic legal system. Additionally, the government of India has exclusive power to conclude and implement international treaties or agreements." The President of India is vested with the exclusive power of the Government of India and empowered to enter into and ratify international treaties. Indian courts cite international law when there is no inconsistency between them and there is a void in domestic law. However, better implementation can be attained.

References:

• Articles/ Journals: "Treaty making power under the Constitution" prepared by Shri P.M. Bakshi, Former Member, Law Commission of India.
• Indian Journal Of International Economic Law Vol 10
• Web Material: Encyclopaedia Britannica
• Ebooks:
  1. Law And Treaties By Mijawar
  2. International Law by I.P. Massy
  3. Public International Law By Shilpa Jain
  4. Comparative Constitution by M.P.S
• Websites:
  1. http://www.govtofindia.com
  2. http://www.vidyanbhavan.com
  3. https://www.academia.edu
  4. https://books.google.co
  5. https://etherwave.wordpress.com
  6. https://www.EBC.com
  7. https://www.AIR.com
  8. https://www.SCC.com
• Newspaper: The Times Of India

Written By:

1. Mandar M. Surve And
2. Aashutosh Kale