TREATIES AND CONVENTIONS AS A SOURCE OF LAW IN INDIA

INTRODUCTION

India as a democratic and sovereign country has made tremendous progress in the National as well as the international field.

With its growing international relations and diplomacy, India has managed to maintain a strategic political stance on international matters and thereby maintaining its relations with other countries. India is a part of a good deal of treaties responsible for maintaining peace, diplomatic ties, and legal obligations on the international platform. This paper aims to talk about if these treaties and conventions which are a part of international law act as a source of law for the domestic Indian Legal system and the constitutional framework regarding their admittance, and if they are, up to what extent they can spread their roots through the Constitution of India and its three organs, i.e., the executive, the legislature and the Judiciary. International law is implemented in India either following the functions that each government organ performs or in light of how well it fits into each area of law.

TREATIES AND CONVENTIONS

Treaties, also known as agreements, exchanges of notes, protocols, or conventions are made between States or states, and international organisations which regulate international peace are considered one of the most important sources of international law.

A treaty is not an actual source of law but it is considered as much a source obligation under International Law.

Only the States that sign up as parties to a treaty are subject to its obligations, and becoming a party to a treaty is entirely up to the State. One of the most prominent examples is the Vienna Treaty Convention, 1969. The 1969 Vienna Convention defines a treaty as "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or two or more related instruments and whatever its particular designation"[1].

India is a party to more than one hundred and sixty treaties and conventions dealing with various fields of law like air law, space law, and maritime law. The legal and Treaties Division of the Ministry of External Affairs was created in 1957 as a nodal point to deal with all aspects of international law advice to the Government of India[2]. This Division is the sole source of legal advice for the Ministry of External Affairs. Furthermore, it advises other Ministries/Departments of the Government of India on all matters pertaining to international law, treaty conclusion, and interpretation.

On September 10, 2021, the Standing Committee on External Affairs released its report titled "India and International Law, including Extradition Treaties with Foreign Countries, Asylum Issues, International Cybersecurity Issues, and Issues of Financial Crimes." The report discussed and explained the various treaties India has entered into and its need in due course of time as the sphere of International Law is getting intricate and complex at a rapid pace.

INTERNATIONAL LAW AND THE CONSTITUTION OF INDIA

The preamble defines the overall goals of the constitution. It includes some of the fundamental principles and values that India as a nation upholds for its citizens and strives to achieve as a whole.

It strives for the attainment of economic, social, and political equality for all people, among other things, and aspires to advance freedom of speech and opinion as well as equality of opportunity and position for all citizens of the nation. These principles are thought to be universal in nature and are regarded to constitute the cornerstone of true democracy.

A value specified in the preamble of the Indian constitution; sovereignty is a key concept in international law. In general, sovereignty denotes a country's independence, and India's external sovereignty means it is free to take over any area abroad and to cede any portion of its own, with some restrictions outlined in the constitution.

There are significant similarities between the Universal Declaration of Human Rights (UDHR) and the Fundamental Rights in Part III of the constitution as well as the Directive Principles of state policy in Part IV of the constitution.

The constitution's Article 51[3] is the section that most closely correlates to international law. This Article's provisions mandate that the state uphold just and honourable relations with other countries and work to ensure international peace and security inside its borders. The Article makes it clear that the state must uphold the principles of international law, use its best efforts to fulfil its treaty responsibilities, and support the use of arbitration to settle international disputes.

Although it instructs the state to uphold international law, this article does not specifically incorporate it into Indian law.

Article 37[4] of the Indian Constitution should be interpreted in conjunction with Article 51 of the constitution, which is a directive principle. Despite the fact that Article 37 states that the provisions in Part IV of the Constitution are not enforceable in any courts, the principles outlined there are essential to the nation's governance, and it is the responsibility of the state to ensure that these principles are followed when passing laws.

Similarly, Article 51 A[5] of the constitution of India gives force to Article 29(1) of the UDHR which mentions the duties of the citizens towards the state which help to build the nation and understand the importance of individual responsibility[6].

INTERNATIONAL LAW AND ITS IMPLEMENTATION AND EXECUTION

The issue of how international law is implemented in the States has become crucial.

The basic norm is that a State cannot defend itself by using domestic legislation if it has violated an international law principle; otherwise, international law would be disregarded. The state's apparatus is typically used to carry out its domestic policy objectives and principles in order to enforce international law. Because governmental institutions are crucial to the implementation of international law, decisions made by domestic courts may make reference to relevant international law.

POWER OF THE EXECUTIVE

Treaty-making in India is primarily an executive function. A combined reading of Articles 73[7], 246[8], and 253 of the Indian constitution, as well as Entry 14 of List I of the Seventh Schedule, leads to the conclusion that the executive power

of the union government is co-extensive with the legislative power in the matter of entering into and implementing treaties. As a result, the union executive has somewhat unrestricted power in concluding treaties and determining the extent to which a treaty should bind India.

Because Article 73 of the Indian Constitution places no restrictions on the government's powers in connection to international law, the executive is free to enter into any treaty obligation. Thus, the Supreme Court stated that international law is part of Indian domestic law unless it conflicts with domestic law provisions. As a result, we can conclude that only the treaties that violate citizens' rights or call for a revision to current municipal legislation require the consent of the parliament. Accordingly, India's current policy is that the Parliament must only approve treaties that have an impact on residents' rights and call for the creation of new or modifications to already-existing municipal laws.

POWERS OF THE LEGISLATURE

According to Article 253[9]The parliament alone has the authority to enact legislation for the entirety or a part of India's territory with the goal of carrying out a treaty,

agreement, or convention with another country, as well as any decisions reached by an organisation or conference. Article 253 specifically grants the parliament the particular authority to pass laws and enact legislation in order to carry out international agreements in relation to international law. The authority granted by Article 253 supersedes the provisions in Part XI, Chapter 1 of the Constitution, which divides powers between the union and the states.

In order to carry out international treaties, agreements, and conventions, Article 253 gives the parliament the authority to adopt legislation on the topics listed in list II of schedule VII. As a result, the parliamentary authority in areas of international law can be considered to be comprehensive.

ROLE OF INDIAN JUDICIARY

Although the Indian judiciary does not have the authority to make laws, it interprets India's obligations under international law through adjudicating domestic matters involving international law concerns.

The courts have stated that the treaties that India has ratified should be executed in good faith, but that the presence of domestic legislation is required for the government to respect a treaty. Indian courts' attitude toward international law has been steadily changing. The Indian Supreme Court has repeatedly emphasised that when addressing the constitutional requirement, courts should keep in mind the fundamental principle embodied in international conventions and instruments and, to the greatest extent possible, give effect to the fundamental principle contained in those international instruments—particularly when there is no conflict between them and a gap in domestic law.

In the historic case of Vishaka & Ors v. the State of Rajasthan & Ors (1997)[10], the court referred to numerous international conventions and norms that were pertinent for the purpose of ensuring gender equality and the right to work with dignity when drafting the guidelines on sexual harassment of women at the workplace.

In addition, the supreme court reiterated that India adheres to the dualism doctrine in the case of State of West Bengal vs. Kesoram Industries Ltd. & Ors (2004)[11] and stated that any treaty that India has signed cannot become the law of the land unless the parliament enacts a law in accordance with section 253 of the Indian constitution.

The Calcutta High Court ruled in Krishna Sharma v. State of West Bengal & Ors (1954)[12] that when there is a conflict between domestic law and international law, the courts should attempt to create a harmonious construction between the two laws.

CONCLUSION

The fundamental basis for implementing the domestic legal system's commitments under international treaties is provided by the Indian Constitution.

Additionally, only the Indian government has the authority to negotiate and carry out any international treaties or accords. The exclusive authority of the Indian Government rests with the President, who has the authority to sign and approve international treaties. When there is a gap in local law but no disagreement between them, Indian courts often refer to international law.

International law and state policy are both constantly evolving. The much-lauded principles and standards of international law are, in turn, negotiated by state practice according to deemed national interests. The intricate and ambiguous link between international law and domestic law is demonstrated by Indian practice. India takes varying positions on implementing international law; at times it is ready, and at other times it is not.

REFERENCES:

⮚ The Constitution of India and International Law, available at https://blog.ipleaders.in/constitution-of-india/ (last visited July 5, 2022)

⮚ Sources of International Law: An Introduction by Professor Christopher Greenwood, available at https://legal.un.org/avl/pdf/ls/greenwood_outline.pdf (last visited July 5, 2022)

⮚ Indian Treaties Database by Ministry of External Affairs, available at https://www.mea.gov.in/treaty.htm (last visited July 5, 2022)

⮚ India and International Law: Part 1, available at https://www.drishtiias.com/summary-of-important-reports/india-and-international-law-part-1#:~:text=According%20to%20Article%20253%2C%20the,at%20any%20association%20or%20conference (last visited July 5, 2022)

The International Treaties Conventions and their Influence in India, available at http://www.legalservicesindia.com/article/2574/The-International-Treaties-Conventions-and-their-Influence-in-India.html (last visited July 5, 2022)

[1]United Nations Treaty Collection, Definitions, https://treaties.un.org/Pages/overview.aspx?path=overview/definition/page1_en.xml (last visited July 4, 2022) [2] Indian Treaties Database, https://www.mea.gov.in/treaty.htm (last visited July 5, 2022) [3] INDIA CONST. art 51 [4] INDIA CONST. art 37 [5] INDIA CONST. art 51A [6] The Constitution of India and International Law, https://blog.ipleaders.in/constitution-of-india/ (last visited July 5, 2022) [7] INDIA CONSTI. art 73 [8] INDIA CONSTI. art 246 [9] INDIA CONSTI. art 253 [10] Vishakha & Ors v. State of Rajasthan & Ors, AIR 1997 SC 3011 [11] State of West Bengal v. Kesoram Industries Ltd. & Ors, (2004) 10 SCC 21 [12] Krishna Kumar v. State of West Bengal & Ors, AIR 1954 Cal 591

This article is written by Shuchita Pandey of Vivekananda Institute of Professional Studies, GGSIPU.