What is the true nature and character of international law vis-à-vis Indian sovereignty and constitutional protections? This is a tricky issue and has not been discussed by our Indian judiciary. However, the issue is too important to be ignored any more by our judiciary and Indian government.
We have discussed this issued in the year 2005 and now we are once again discussing the same. The crux of this work is that every international law, to be valid and constitutionally sound in India, must be tested on the touchstone of Indian constitution. This is so because there is a great difference between international law and national law, especially the one that is enacted within the framework of Indian constitution.
Any international law that is in violation of Indian constitution would cease to operate to that extent in India. This is so even if the parliament of India has enacted a law based upon such international law. The reason for this is that no law, whether national or international, can be in derogation of Indian constitution.
Before proceeding further, we must differentiate between private international law and public international law. 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”
The term “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.
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 appropriate 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.
The online gambling trade dispute brought by Antigua against the United States (United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (DS285) (“US-Gambling”), proves this point.
In this case, the Dispute Settlement Body of the World Trade Organisation (WTO) authorised the small, Caribbean country of Antigua and Barbuda (Antigua) to suspend its obligations regarding American intellectual property rights. As a result, the Government of Antigua and Barbuda will be able to authorize the sale of products of innocent holders of copyrights, trademarks and other important intellectual property rights, free of those legal protections.
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 civil liberties in cyberspace 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.
As far as India is concerned, even after an international law has been incorporated into legislation it must satisfy the mandates of the Constitution of India. Till then it has a mere “moral significance” and “persuasive value”.
International laws 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.