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
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
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
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
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
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