I. INTRODUCTION
The law regulates the conduct of the society in its most desirable and benign form. It maintains the order in the society and eliminates unhealthy delinquencies and deviations. Thus, law plays an important role in developing a civilised society. The law of a country is generally based on its social, economic, and political ideologies and notions. These ideologies and notions are essentially different in various societies. This usually gives rise to “conflict of laws” which is generally taken care of by the “Private International Law”. An important aspect of the Private International Law is that it is territorial oriented and society specific. Thus, the laws of the country in question prevail, if there is a conflict between the two laws of the different sovereign States. The “Public International Law” on the other hand primarily encompasses within its ambit the Treaties and conventions which are required to be uniformly followed by the “Member Countries”[1]. To appreciate the concept better it is inevitable to analyse the concept of International law in some detail.
II. CONCEPT OF INTERNATIONAL LAW
The expression “International law” is synonymously used for the term “Public International Law”. It is different from “Private International Law” that is a law of different States. The rules of Private International Law have been formulated to avoid conflicts that arise due to conflicting laws of different States. The Public and Private International Law differs in many crucial aspects that primarily decide which law will govern the situation. The chances of “sovereignty clash” are more in case of Private International Law as compared to its counterpart. The following differences between Private International Law and Public International Law are worth noticing:
(1) Subjects: The Public International Law primarily deals with the States and to some extent with the individuals; Private International Law primarily deals with the individuals of two States.
(2) Scope: The rules of Private International Law are made by the concerned sovereign State whereas it is not so in case of Public International Law.
(3) Applicability: The Public International Law is applied uniformly to all States with few concessions attached to it whereas Private International Law differs from State to State.
(4) Source of law: The Public International Law is formulated through the mode of Treaties and Conventions whereas the Private International Law is formulated by the legislature of the sovereign States.
As a general rule the Public International Law is usually used to give effect to municipal laws of a State but there may be occasions where Private International Law may become rules of Public International Law. This happens when the rules of Private International Law are incorporated in the international treaties.
III. THE TRUE FACE
One of the most controversial issues that has long been debated and on which the opinions of the jurists and legal scholars are sharply divided concerns the status of International law. One view is that International Law is not a true law but has a moral and persuasive value only. The other view is that International Law is a true law, and it is to be regarded as law in the same way as that of ordinary law of a State which is binding upon the individuals.
The former view seems to be more practical and apposite for the present regime of International Law. This is so because if the International Law binds all the member States there should not be any “hegemonic superiority” in favour of any particular State. This is unfortunately the present trend of International Law. There are instances of “express violations” by the “developed nations” who are holding the prominent position there. There is neither any “sanction” nor any “remedy” against such violations. It is true that State laws are equally violated but then we have a remedy for the same and the “double standards” that are prevailing in the International Law are missing in such violations. In the case of violation of municipal laws there is a single sovereign who enforces the rights against such violations. So much so that even that “sovereign” is also made “accountable” for the wrongs committed by it. Thus the concepts of sanction, enforcement and accountability are not missing in municipal laws unlike International Laws. The biggest threat to the existence of International Law is the patent adoption of “double standards”. The rules of International Laws are “twisted” and “molded” as per the requirements of the concerned State. The Human Rights are violated on large scale by the very propounder and advocates of these rights; the countries are invaded under the garb of terrorism even against the wishes of the members constituting the agency, the environment is degraded to an intolerable limit and the rules of International Laws are not followed uniformly. Thus, instead of adopting the common standards, the standards suiting the requirements of developed nations are adopted.
It would be sufficient to say that International Law is law till the States “consider” it as law. As compared to municipal law it is definitely weak even if the same is accepted as a law by the concerned State. The rules framed in various Treaties and Conventions are so formulated so as to give wide range of options to the States. This happens because certain “privileges”, “flexibilities” and “exceptions” are created in favour of both the “developed” and the “developing” nations. The developed nations use certain “prerogatives” that are not available to developing nations whereas the developing countries bargains certain “flexibilities” in their favour that slows down the progress of the “harmonisation process”. In short, both developed and developing countries use the rules of International Laws for their own benefits. Further, due to lack of adequate sanctions these rules are often deviated from by the “strong and superior States”. At times it becomes almost impossible to compel these “strong and superior” States for the observance of rules of International Law. Thus, International Law largely remains a “personal domain” of the member States where the ultimate result is governed by “diplomacy and might” and not by agreed common rules and regulations.
IV. CONSTITUTIONAL ANALYSIS
The Treaties and Conventions entered in the sphere of Public Internationals Law are not automatically incorporated in the “Municipal Legal System”, though some countries endorse the concept of “automatic incorporation” of the same. In India, we have to take an independent action of “legislation” U/A 253[2] of the Constitution of India to make the Treaties and Conventions functional. This shows the legislative superiority of Parliament over the respective State[3]. Thus, a law passed by the Parliament in this eventuality will not be invalidated on the ground that it is legislating on a subject falling in State List. The non-obstante clause of Article 253 is, however, subject to the other provisions of the Constitution. For instance, Article 253 is subject to the “Doctrine of Basic Structure”. Similarly, Article 253 is also subject to Part III of the Constitution of India. Thus, the Fundamental Rights cannot be overridden by a law made under Article 253 of the Constitution[4]. This position points towards the scope of International Law in India. It shows unquestionably that unless and until a Treaty or Convention has been given due effect in India U/A 253 it has no binding value except a “moral appeal”. This is so because even when enacting laws for the purposes of Private International Law if the law is not enacted properly it has no binding force. A law may be enacted by the Parliament and the same may have received the approval of the President of India, still the same may have no binding force if it has not been notified by the “Executive” wherever required. For instance, the Delhi Rent Control Act, 1995 has been enacted by the Parliament and the same has received the approval of the President as well but still the same is not applicable because the “Executive” has not brought it in to force. Thus, if a law made by the Supreme legislative machinery of India has no force even if it has satisfied almost the entire procedural requirements as prescribed by the Constitution of India, it is difficult to appreciate how International Law has any applicability in India particularly when the same is either against the provisions of the Constitution of India or has not been incorporated into the municipal sphere by a legislation. Even after legislation it must satisfy the mandates of the Constitution of India. Till then it has a mere “Moral significance” and “persuasive value”. It is important to note that even if India is not a party to a particular Treaty or Convention or even if it has not incorporated the same in the municipal sphere, the Constitutional Courts in India have the power to incorporate the same into municipal laws to give effect to Fundamental Rights and other rights. The only condition being that the same are not against the “municipal law” of India. Thus, there is no fixed rule that if the Parliament has made a law as per the signed Treaty or Convention it is always valid. The same may be held to be “unconstitutional” if it is against the municipal law of the country, particularly the Constitution of India. On the contrary, there is nothing that restricts the Constitutional Courts in India to invoke the provisions of International Treaties and Conventions for interpreting the Fundamental Rights in a liberal manner even if India is not a signatory to any particular Treaty or Convention.
V. CONCLUSION
The International Law is a “law” only and upto the extent recognised and enforced as such by the concerned State, otherwise it has a mere persuasive value and moral sanction only. It has to be judged on an “individual transaction basis” and not on “universal” basis because for the same transaction and event States act differently. Thus, while one State prefers to abide by its rules whereas the other may act in a flagrant violation of the same that cannot be justified either by the International Law itself or by a humanitarian behaviour. The only good thing about the International law is that at times it is used by Courts to give a “purposive and updating” interpretation to the existing provisions of the municipal law. The same, however, by and large remains a “moral charter” only.
© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Delhi High Court
Contact at:
pd37@rediffmail.com/ perry4law@yahoo.com Contact at 9899169611
[1] Praveen Dalal, “The mandates of WTO”,
http://www.naavi.org/, posted on 27-02-05. [2] Article 253 reads- Legislation for giving effect to international agreements: Notwithstanding anything in the foregoing provisions of this Chapter (Part XI, Chapter 1-Legislative Relations), 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 any international conference, association or other body.
[3] Praveen Dalal, “The golden path of TRIPS”,
http://perry4law.blogspot.com/. [4] Maganbhai v U.O.I, AIR 1969 SC 783.
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