Author– Vijpreet Pal, 3rd semester, BALLB (Hons.), National Law Institute University, Bhopal
Co-Author- Sanskar Modi, 3rd semester, BALLB (Hons.), National Law Institute University, Bhopal
International law is considered a soft law that operates on the basis of the consent of the member states. No state can separate itself from the international arena and the laws and regulations that guide international jurisprudence. Furthermore, in the present time international law is not only limited to relations between member states, but has also begun to govern nation’s domestic concerns. The method of enforcing international law varies from country to country. India follows the ‘doctrine of transformation’[i] but, in recent times, the ‘doctrine of incorporation’ is in vogue. This change in treaty-making is negatively impacting domestic constitutional values. This article will argue for the change in laws that can ensure treaty-making does not escape the reach of domestic constitutionalism. The article will further delve into the interface between Global Regulatory Regime and the Indian Constitution by critically examining the prevalent procedure of “Treaty-making by Executive”.
Keywords- International Law, Domestic Law, Treaty making power, Constitutional Principles, Globalization
2. NEED FOR A GLOBAL REGULATORY REGIME (GRR)
The introduction of a global regulatory regime in the form of transnational law is a fairly new concept in this era of globalization. Broadly speaking, it refers to the “integration of economies and societies through cross country flows of information, ideas, technologies, goods, services, capital, finance, and people.”[ii] The definition of globalization by Held D very succinctly incorporates these aspects. He defines globalization as:
“Title widening, deepening and speeding up of worldwide interconnectedness in all aspects of contemporary social life, from cultural to the criminal, the financial to the spiritual”[iii].
Today, no nation is isolated from other nations and does not want to miss the opportunity of globalization. Even the most isolated country in the world, the Republic of Korea, shares diplomatic relations with several countries and participates in the globalization regime. This shows the inevitability of a global regulatory system in the 21st century.
However, it must be emphasized that globalization, in addition to creating new perspectives and opportunities, poses new problems and challenges to the legal system of independent sovereign countries. Problems that once existed in the domestic system are increasingly being globalized by because of international law now including matters related to domestic law as well. This has forced the international community to enact more and more laws on internal affairs, which poses problems. Highlighting this aspect Kingsburypoints out, “various transnational systems of regulation or regulatory cooperation have been established through inter-national treaties and more informal intergovernmental networks of cooperation, shifting many regulatory decisions from the national to the global level”[iv].
It is important to note that much of the global regulatory regime is emerging in the form of international treaties, covenants, conventions, etc., and, thus, they are covered under the garb of international law. Due to the increase in International Laws, sovereign nations are compelled to oblige the requirements of the Treaties and Covenants signed by them. This mechanism and trend are affecting the State’s Sovereignty as the important rules and regulations which are to be formed by the Legislature of that nation have already been formulated at International Level. This increasing regime of transnational law has several implications on the governance of the nation which ideally ought to be carried out based on the law of land-‘The Constitution’.
3. GLOBAL REGULATORY REGIME vis-à-vis CONSTITUTION OF INDIA
The Constitution of India obligates the State to respect international law. “It lay down the bases on which India’s foreign policy should be formulated and its international obligations respected”[v]. Article 51 of the Indian Constitution envisages the value of International Law under the Indian Constitution. It enunciates the points that State should endeavour to “(i) promote international Peace and Security (ii) maintain just and honourable relations between nations (iii) foster respect for International Law (iv) Encourage settlements of the International dispute by arbitration.”
The perusal of Article 51 illustrates the point that framers of the Constitution were well aware of the increasing global regulatory regime in the future, they do not want the country to treat international laws, treaties, and covenants as a mere scrap of paper and therefore have incorporated this Article in the form of Directive Principles of State Policy (DPSP). “It is pertinent to note that though DPSP is not enforceable but the scheme of the Constitution has made them fundamental in the governance of the country”[vi]. Thus, the Constitution accords due recognition for international law and provides bases for discharging international obligations.
Further, even though the constitution and constitutional law debates are silent on this regard but from the several rulings of the Supreme Court, it is clear that the mandate of Article 51 (c) is wide enough to include respect for even those treaties, covenants, and conventions, which contain provisions that address issues of domestic concern.
After appreciating the value of International law under the Indian Constitution, it is necessary to be well versed with the internal aspect of the treaty-making power. No doubt, this is highly acceptable and clear that every state as a sovereign nation has the capacity to enter into any agreement with any other sovereign nation, group of nations, or body but within the particular nation, as between different organs of government in that nation, which organ is competent enough to enter into such treaties depends on the law of that land. “In the case of India, there is no such explicit provision in the Constitution that deals with the source of power and procedure for entering into a treaty or for signing or ratification of any covenants and conventions. However, Legislature and Executive are vested with certain powers”[vii] which are dealt by the author below.
3.1 TREATY-MAKING POWER OF THE UNION LEGISLATURE
The provision regarding the implementation of treaties and agreements has been expressly mentioned in article 253. Moreover, the Constitution by virtue of Article 246(1) has given exclusive power to the parliament to make laws with respect to any of the matters enumerated in List I of the 7th Schedule. Further, Entry 14 of List I provide the Union Legislature with the competence to legislate on matters relating to “Entering into treaties and agreements with foreign countries and implementing of treaties, agreements, and conventions with foreign countries.” This provision specifically clears the misconception that treaty-making power is not a prerogative of the Union Executive and it squarely falls within the legislative competence of the parliament and the reason behind such misconception is the absence of any law passed by the legislature in this regard.
The Parliament is vested with the power to lay down a comprehensive framework to regulate treaty-making, signing or ratification of other international covenants and conventions. “In addition to the specific entries including the Entry 14 in the Union List, even the residuary legislative power is also vested with the Parliament”[viii].
Thus there is a dire need to understand the scope and extent of treaty making power of union executive under the scheme of the Indian Constitution.
3.2 TREATY-MAKING POWER OF THE UNION EXECUTIVE
Article 73 of the Indian Constitution envisages that the executive power of the union shall extend (i) to the matters with respect to which the parliament has the power to make laws, (ii) to the exercise of such rights, authority, and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement. The plain reading of the Article conveys that “the powers of Legislative and Executive are co-extensive and hence enactment of law is not necessary to exercise executive power”[ix].
It has always been a settled position that by virtue of Article 73, Union Executive is competent to enter into any treaty with any sovereign nation. Moreover, in the case of P.B. Samant v. Union of India, this power was further enlarged to the extent that the Union of India can exercise its executive power to enter into any treaties which can affect the matters in state list as well. This has affected the sovereignty and the federal nature of the Indian Constitution to a large extent and hence it is necessary to have a certain restriction on the treaty-making power of the Union Executive.
4. CONSTITUTIONAL LIMITS ON TREATY-MAKING POWER
Law made by any organ of government either through its original jurisdiction or by delegate jurisdiction has to be in conformity with the provisions of the ‘law of the land’. Since Parliament till now has not made any law to regulate the treaty-making power of the executive, the only limitation for the executive is to follow the mandates enshrined in the constitution. Article 46 of the Vienna Convention also states that a treaty is invalid if it violates “internal law of fundamental importance”[x].
Therefore, it is necessary to comprehend the true constitutional limits on the treaty-making power of the executive. “However, an attempt to prepare an exhaustive list of limitations on treaty-making power can only yield limited results because of the inherent limitations on the executive power due to the federal structure of the Indian Constitution.”[xi]
The Constitutional Limit on treaty-making power highly depends upon the enforcement of transnational law in India. Every nation has a different mechanism under its domestic law to enforce and implement International Law. The perusal of such a mechanism is necessary in order to find out which law will prevail when both are incongruous to each other.
4.1 INTERNATIONAL LAW v. DOMESTIC LAW- ENFORCEMENT OF TRANSNATIONAL LAW UNDER INDIAN CONSTITUTION
The question regarding the formation and implementation of treaties in any sovereign nation is governed by the provisions of the constitution of that country. Different constitutions have adopted different approaches towards the implementation of international law under the domestic regime. Two approaches are immensely popular all across the globe. They are-:
- Monist Theory
- Dualist Theory
The Monist Theory follows the principle of ‘Unity of Law’ and incorporates any provision of international law if it is in conformity with the law of the land. This theory asserts the supremacy of International Law in both the national and international spheres. Dualist Theory on the other hand asserts that the municipal law and international law are separate and distinct operating at different levels. “India follows dualist theory in which International Law is given primacy at International Level and Domestic Law has primacy at the National/Domestic Level”[xii].
The Indian law expressly does not enshrines the power of treaty-making to any particular authority but Article 51(c), Article 253, and Article 246 when read with Schedule VII of the Constitution of India establishes to some extent the position of ‘formation‘ of treaties in India. However, the problem arises with respect to the ‘implementation’ of treaties. It is a generally accepted principle that no pre-legislative provision is needed to implement any international law which does not restrict the rights of the citizens and is justifiable. But, if any provision of the international law is not in conformity with the domestic law or is violating the rights of citizens, the ‘doctrine of transformation’ comes into play. The provision or legislation is amended to such an extent so as to make it in consonance with domestic law.
However, the Judicial Approach towards this doctrine is not at all in consonance with the constitution. In the name of judicial activism and to bring the Indian Constitution in comity with international law, the judiciary is usurping Parliament’s power of enforcing international treaties and conventions. In the People’s Union for Civil Liberty v. UOI, the court gave effect to the unincorporated provisions of the International Covenant on Civil and Political Rights (hereinafter ‘ICCPR’). This shows that the International treaties and conventions can be referred to and relied upon by the court, even if they are not implemented under municipal law. This is seriously affecting the federal structure and internal sovereignty of the Indian Constitution.
In this era of globalization, International Conventions, Treaties, Regulations are increasingly formulated to deal with issues that are of domestic concerns as well. But, in the present day, the position of India vis-à-vis International Law is not in consonance with the Constitutional Regime. As mentioned earlier in this article, due to the absence of any Law, the treaty-making power is considered to be the prerogative of the Union Executive and this trend is leading to serious repercussions on the Federal Structure of the Indian Constitution.
The aforementioned discussion leads to the conclusion that there is a high time to reform and revitalize the process of treaty-making in India as the decreasing participation of the legislature in the treaty-making process in India is a serious concern. Parliament represents the mandate of the people and therefore incorporating any treaty without any enabling legislation goes against the basic constitutional tenets. Article 51 advocates respect for International Law and Treaties obligations but this shall not come at the cost of violating the law of the land.
[i] VG Hedge, “Indian Courts and International Law”, 2010, s.l.: Lieden Journal of International Law, Vol. XXIII.
[ii] C. Rangrajan, “Responding to Globalization: India’s Answer“, 4th Ramanbhai Patel Memorial Lecture on Excellence in Education.
[iii] Global Transformations. s.l.: Stanford University Press.
[iv] P. Puneeth, “Changing Facets of International Law: Understanding the concept of Global Regulatory Regime”, 2011, s.l.: Bangalore Law Journal.
[v] P. Chandrasekhar Rao, “The Indian Constitution and International Law”, 1993, Vol. 3.
[vi] MP Jain, “The Constitution of India”, 2017, s.l.: Central Law Agency.
[vii] C.G. Raghvan, “Treaty-Making Power Under the Constitution of India“, 1972, S.K. Agrawala (ed.), Essays on the Law of Treaties.
[viii] The Constitution of India, 1950, Article 248 & Article 246 read with List 1 of VIIth Schedule.
[ix] Ramesh Chander Ghosh, “Treaties and Federal Constitutions: Their Mutual Impact”, 1961, The World Press Private Limited, Calcutta.
[x] P. Chandrasekhar Rao, “The Indian Constitution and International Law”, 1993, Vol. 3.
[xi] Upendra Baxi, “Law of Treaties in the contemporary practice of India”, 1965, s.l.: The Indian Year book of International Affairs ,Vol. XIV.
[xii] P. Chandrasekhar Rao, “The Indian Constitution and International Law”, 1993, Vol. 3.