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International Law Enforcement in India

International Law is known to us by different names such as Inter-State Law, Law of Nations and Public International Law and has many definitions. In addition to this, international law has a traditional as well as a modern definition and there are different versions of these definitions. According to the traditional language, international law is a set of laws and rules and regulations that regulate the relations amongst various countries.

The modern definition of international law has not changed so much. According to the modern definition, international law is a set of laws and rules and regulations that regulate the relations amongst different countries and the relations amongst various distinct international organizations, individual non-state entities, and companies. Unlike the law of the land or National Law, international law does not have a recognized legislature, judiciary or executive.

We know that the Local Law or the National law consists of all of the three i.e., legislature, executive and judiciary but international law does not. John Austin has defined international law as a code of rules and conduct of moral force or nature. On the contrary, Hall and Lawrence call international law a true law.

They believe that international law is derived from customs and precedents which happen to be a source of law. In addition to this, they also believe that international law is treated as a specific kind of positive law. We shall be discussing how international law is enforced in India.
India and International Law
India is a party to many conventions and treaties related to international law in the domain of human rights laws, environmental law, trade laws, space laws, intellectual property laws and many more. We can comprehend the enforcement of international law in India using two different perspectives i.e., international law related to treaties and conventions and international law about international customs.

The reason why we have to study the enforcement of international laws in India using two different perspectives is that we follow a dualist theory. India follows a dualist theory of international law, which means that treaties and conventions cannot be invoked unless they are incorporated in the nation's domestic laws in the first place.

Article 27 of the Vienna Convention on the Law of Treaties, 1969, made it clear under the principle of pacta sunt servanda, that the state is under duty to honor its international obligation even if it means amending its domestic law. In case a dispute arises between domestic law and international law, it is the duty of the court to reconcile the two and to see how far the state's constitution allows implementation of international law.

In view of the provisions laid down by Article 51 of the Indian Constitution, the courts have held that India is a party to these international laws and therefore, international conventions and treaties should be adopted in good faith. These conventions and treaties are supposed to be incorporated in the domestic laws automatically except in the cases where the Indian Constitution needs to be amended.

If the Indian Constitution needs to be amended, these treaties and conventions will not be automatically incorporated into domestic laws. It should be noted that Customary International Law is not incorporated in the domestic laws automatically either. The courts of our nation play an imperative role in the enforcement of international law in India. Article 51 of the Indian Constitution mandates respect international law in order to maintain friendly and peaceful relations with various foreign countries.

It should be noted that it is not enforceable since it is a Directive Principle of State policy Clause (c) of Article 51 states that international law needs to be respected by India and Clause (d) of Article 51 states that in case any dispute or conflict arises between India and some other foreign country, then it shall be settled by peaceful means.

Article 253 of the Indian Constitution enables the Parliament of India to make laws pertaining to international laws in India. Such laws shall be ratified by the President in order to come into force. The power to implement such laws and treaties and conventions with respect to international law lies with the Parliament. It should be noted that this power is to be exercised by the Parliament only and the States do not have a say in it.

The laws made by the Parliament concerning Article 253 of the Indian Constitution will always prevail. Even the Preamble of India has many morals as well as values that are quite similar to those of the Universal Declaration of Human Rights i.e., social, economic and political justice for all the citizens, liberty and equality which shows that our nation has incorporated the international laws within the law of the land and respects it.

The Indian judicial system does not exercise any power in implementing International Law in the country but they are actively referring to these laws for judicial interpretation and while rendering decisions in cases of international disputes specifically in Human rights and Environmental Laws cases. However, even after evolving attitude of Indian Judiciary and active role of Indian legislation in supporting of international law, there is lack of synchronization between the Domestic and International Law.

One of the reasons for this is years old colonised structure which is followed in the country. There are still many archaic statues persisting in our system which are not as modern as the globally followed laws and thus it creates a problem in cooperating with dynamic and diverse international principle. Secondly, the diverse culture and traditions of the country. Some parts of India are modernised while others are still following the orthodox beliefs and ancient ideology. So, when there are so many differences in thoughts and customs within the local level, it becomes a task to level it up with the global level.

India is famous developing state and is a significant contributor in the field of international law. There is a wide scope of better implementation of international laws in the country. India should strive to sign more treaties and maintain a written legal documents for better enforcement. Adopting these from the ground level for better will help to cope with the rapid changing global laws and legal system.

Case Laws pertaining to International Law Enforcement
National Legal Services Authority v. Union of India
In this case Supreme court held that parliamentary approvals are necessary for treaties which infringe the rights of the citizens or which require change in the domestic law of the state. International law forms part of domestic law except where there is inconsistency with the provisions of domestic law.

Keshavanad Bharti v. State of Kerala
Honorable Chief Justice Sikri in this case said that in situation where the language of municipal law is not clear or contrary then the support of international law must be taken. Article 253 gives power to the parliament of our country to make laws for giving effect to international treaties and conventions.

Vishaka v. State of Rajasthan
In this case of sexual harassment of women at workplace, the court used international law to find the meaning of domestic law and also held that international laws which consistent to it should be taken in to consideration for enlarging the meaning and content of the domestic law.

Krishna Sharma v. State of West Bengal
In this case the Calcutta High Court stated in 1954 that in case of dispute between international law and domestic law, courts should restore harmony in the two and must examine interpretations of international instruments including treaties, conventions, and declarations.
India is a party to several conventions and treaties which are the branches of international laws. As already discussed, these laws, treaties and conventions are pertaining to human rights laws, space laws, environment laws, intellectual property laws etc. India follows the dualist theory which treats domestic laws and international laws separately.

According to it, international laws will be incorporated within the law of the land only in adherence to the existing domestic laws in force. In India, Articles 51 and 253 of the Indian Constitution play a pivotal role in the enforcement of international laws. The State must respect these laws and adopt such laws in order to maintain peaceful and friendly relations with foreign countries, international organizations, associations and bodies. The Constitution of India has provisions that shall enforce international law in India in accordance with the local laws and shall continue to do the same in the future.

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