The law of nations of the 18th century was named as international law by Jeremy Bentham in 1780. It consists of rules which regulate relations between States inter se. Oppenheim defined International law as “the body of customary and conventional rules which are considered legally binding by civilized States in their intercourse with each other”.1 The Permanent Court of International Justice (PCIJ) in S.S. Lotus case2 defined International law as “principles which are in force between all independent nations”.
Lords Halsbury, when he was Prime Minister of England, said “it was a misnomer to call International law as ‘law’. It should be better described as a branch of ethics”.
Salmond believed that International law is “the aggregated of the rules to which the nations have agreed to conform to their conduct towards one another”. It consists of those rules which the states have agreed to observe in their dealings with one another. These international agreements may be of kinds, namely-(1) express agreements as contained in the treaties and conventions; and (2) implied agreements as found in customary practices of the states.
According to Austin, Willoughby, and Holland, International Law is a mere positive morality.
In Great Britain, International Law is not ipso facto regarded as a part of the U.K. law as held by Chief Justice Coleridge in Franconia Case3. In this case, the Court observed that “the law of nations is that collection of usages which civilized states have agreed to observe in their dealings with one another. What these usages must be is a matter evident. Treaties and Acts of States are but evidence of the agreement of nations and do not, in England at least, per se bind the tribunals. However, there is one exception, namely, in case of Prize Courts deciding the legality of the capture of cargoes or ships at sea belonging to a belligerent. “The law which the Prize Court is to administer is not the national law as it is sometimes, called, the municipal law, but the law of nations-in other words, international law…”4
The Indian practice with regards to the International law is almost the same as that of Great Britain. Treaties which are part of the International law do not form part of the municipal law unless expressly made so by the legislative authority. Therefore, Government’s contention that treaty be regarded as ‘law’ was not accepted by the High Court of Rajasthan in Birma v. State.5
The constitution of France, United States, Germany and other modern countries explicitly provides the provisions for the Domestic application of International Treaty Law but the Constitution of India does not make specific reference towards the definite application of International Law.
Article 51 of the Indian Constitution: Promotion of International Peace and Security-
The state shall endeavor to –
- a) promote international peace and security
- b) maintain just and honourable relations between nations
- c) foster respect for International Law and Treaty obligations in the dealings of organized people with one another; and
- d) encourage settlement of the International dispute by arbitration.
For the purpose of this study, the central point for discussion is Article 51(c). Article 51 of the Constitution had its source and inspiration in the Havana Declaration of 30 November 1939. The first draft (draft Article 40) provided:
“The state shall promote international peace and security by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of International Law as the actual rule of conduct among governments and by the maintenance of justice and scrupulous respect for treaty obligations in the dealings of organized people with one another”
With the acceptance of amendments moved by Dr. Ambedkar, H.V. Kamath, Ananthasayanam Ayyangar and P. Subbarayan, draft Art. 40 was adopted by the Constituent Assembly in its present form as Article 51. During the debate, all the speakers emphasized the commitment of India to promoting International Peace and Security and adherence to principles of International Law and Treaty obligations6.
Article 253 of The Indian Constitution: Legislation of giving effect to International Agreements
“Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the Territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at an International Conference, Association or other bodies.”
In Keshavanand Bharati v State of Kerala7, Chief Justice Sikri observed;
“In view of Article 51 of the constitution, this court must interpret the language of the Constitution, if not intractable, which is after all a municipal law, in the light of United Nations Charter and the solemn declaration subscribed to by India”
In Xavier v. Canara Bank Ltd8
The issue was whether provisions of International Covenants/Treaties to which India is a party become part of the corpus juris of India and as a result giving an aggrieved individual a right to remedial action before the municipal court. The question arose on whether Article 11 of the I.C.C.P.R. 1966, viz., that no one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation, has become part of the Municipal Law of this Country consequently conferring right to remedial action at the instance of an aggrieved individual of this Country. In dealing with this question, the Court observed;
“……The remedy for breaches of International Law, in general, is not be found in the law courts of the State because International Law per se or proprio vigore has not the force or authority of civil law, till under its inspirational impact actual legislation is undertaken. I agree that the Declaration of Human Right merely sets a common standard of achievement for all peoples and all nations but cannot create a binding set of rules. Member States may seek, through appropriate agencies, to initiate action when these basic rights are violated, but individual citizens cannot complain about there breach in the municipal courts even if the country concerning has adopted the covenants and ratified the Optional Protocol. The individual cannot come to court but may complain to the Human Rights Committee, which in turn, will set in motion other procedures. In short, the basic human rights, enshrined in the International Covenants above referred to may at best inform judicial institutions and inspire legislative action within member –States but apart from such deep reverence, remedial action at the instance of an aggrieved individual is beyond the area of judicial authority…….”
In Jolly George Verghese v. Bank of Cochin9
The Court was dealing with the effect of international law and its enforceability at the instance of individuals within the State (India), and enunciated the law on the point thus;
“The positive commitment of the State parties ignites legislative action at home but does not automatically make the covenant an enforceable part of the Corpus juris of India.”
Our constitution has given the government free reign and has not bound it to compulsory follow the international law. Unless the legislators make provisions in the law and make necessary amendments it is not obligatory for the Indian States to follow them.
- Oppenheim : International Law, (18th, Vol. 1) p.4
- 1927 PCIJ series A No. 10
- (1876) 2 Ex. D. 63
- The Zamora case, (1916) 2 AC 77, 91 (PC) per Lord Parker
- AIR 1951 Raj 127
- Subhash C. Kashyap, The constitution of India and International Law’, Bimal N. Patel (ed.), ‘India and International Law’, Martinus Nijhoft Publishers, Leiden 2005, p.19.
- AIR 1973 SC 1461
- 1969 Ker L T 927
- AIR 1980 SC 470