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International Law from the Lens of Legal Pluralism

INTRODUCTION

Tracing back to the times when different laws existed in colonies, one for the subjugated and another for the colonial authorities, the term ‘Legal Pluralism’ found its origin. This concept, though at present recognised as universal, was once prevalent and associated with colonial systems. The colonial system sought to impose European legal system over the existing indigenous and local legal system in colonies. This has led to the pre-colonial states to still practice Common Law in addition to their customary and local law. In other nation states, though the legal system is portrayed as unitary, it consists of various systems of rules and regulations that coexist.

Legal Pluralism refers to the coexistence of various laws in a single geographical boundary of a nation state. This interlegality is evident in various decisions to legislate for differentiated rights. These differentiated rights were enacted as special legislations focusing specific groups such as religious groups, minority groups, tribal groups who would want to preserve their customs, traditions and practices, socially and economically backward classes in need of protection and recognition, women and children recognised as the vulnerable class and such. The laws were in furtherance of policy decisions such as affirmative actions, protective discrimination or to uphold the principle of secularism.  Certain laws differ on a geographical basis even within a country. Abortion laws in the United States of America, laws governing anticipatory bail in India are examples of how a specific law varies within a country.

The concept of legal pluralism is on the rise owing to globalisation. Globalisation has enabled the circulation of legal practices and ideologies from one nation to another and the construction of global legal order in various fields such as commerce, human rights etc.

This gave rise to the establishment of international institutions such as the United Nations, International Monetary Fund and paved the way to the concept of International Law which was incorporated in the governance of countries around the world as one of the legal systems.

THE CONCEPT OF INTERNATIONAL LAW

Coined by the English philosopher Jeremy Bentham, International law is “the body of legal rules, norms and standards that apply between sovereign states and other entities that are legally recognised as international actors”. This system of law, though not binding, regulates inter-state relations and acts as a forum to balance out the dissenting and varying policies and ideologies that the sovereign states have.

International law, rather than emphasising on ethical principles, is a legal order and provides normative guidelines to the international actors.

SOURCES OF INTERNATIONAL LAW

The Statute of the International Court of Justice has the function to decide in accordance with International law and the provision enumerates the three sources of international law as treaties, custom and general principles. It also provides for judicial decisions and scholarly writings as subsidiary means to determine the law.[1]

Based on the principle of International Law, ‘pacta sunt servanda’ translated to ‘agreements must be kept’, treaties, conventions and agreements are written instruments that bind the participants who agree to the negotiated terms. These instruments do not bind those countries that do not sign and ratify. Signatories may opt out of certain provisions that they may face issues with.

Whereas the second source- customs, are practices that are accepted as law. The fundamental elements to a custom are twofold- the actual practice of states and acceptance by those states. Duration, consistency, repetition are few elements that determine whether a practice can be held as a binding custom. Once the practice becomes a custom, the international community is bound by it irrespective of whether the states have consented to it except those that have been objected from the start of the custom.

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The source of General principles of Law are those recognised by the civilised nations. In case of subject matters which are not part of the treaties or binding customs, these principles provide a system to address international issues. The basic general principles are good faith and equity.

United Nations is an international organisation that has been working for the advancement of international law and of peace and security. The United Nations has brought in a plethora of treaties that form the basis of law governing inter-state relations.

All the international actors as parties to these treaties and conventions, in addition to solving international issues also use these principles in governance of their own States by incorporating it in their own legal system.

But there exists a few developing countries who feel that subjection to such norms and principles enshrined in the International law may threaten the principle of sovereignty that they strongly stand for.

SOVEREIGNTY AND INTERNATIONAL LAW

The principle of sovereignty focuses on the principles of equality, independence and non-intervention and attributes to the mutual recognition of political independence among states and mutual co-existence.

Certain States consider the resolutions and treaties as an interference with their exercise of power and governance. For, “a State does not recognise a legislator above itself.” [2]

 However, it is pertinent to note that International law is not directly binding and serves only as recommendations and provides a framework for international interaction and thus, rather than posing a threat to the sovereignty of nations, it upholds and recognises the principle as one with utmost importance.

There are two types of sovereignty- Absolute and Relative.

The former theory of sovereignty gives primacy to domestic law over International law while the latter theory of sovereignty identifies and emphasises external independence where a State is independent from another sovereign authority but does not assume independence from International law that consists of the norms and principles that govern Sovereign States.

Decades ago, the concept of sovereignty, however, was viewed from a narrow perspective and one that is associated only with a particular state, its governance and the establishment of law and order.  This was because international relations were not given much recognition and was of minimal importance.

But with the evolution of the theory of ‘Relative’ sovereignty, International law has been gaining momentum with its principle of reciprocal rights and obligations.

In the words of Lauterpacht, “Sovereignty under International Law confers upon the State the right to determine the future content of International Law by which it will be bound, and at the same time, determine the present norms of International Law.[3]

 Therefore, International Law in the global community provides the criteria for statehood on the fulfilment of which the state would have its own legal personality and be entitled to rights and duties under International Law. This decision to be bound by the jurisdiction of international tribunals solely rests upon the consent of the state parties and it is also pertinent to note that the membership is not obligatory and the voting and enforcement of the provisions is at the discretion of the members.

STATUS OF INTERNATIONAL LAW- A GLOBAL PERSPECTIVE

International Law is non-binding in nature unless the sovereign states become signatories and ratify them. Different countries have different approaches to incorporating International Law into their own legal system.

The United States of America

The US Constitution states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”[4]  According to Article II Section 2, the President has the power to make treaties with the consent of two-thirds of the senate.

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Treaties are classified twofold: Self-executing and Non-self-executing. This classification is dependent upon whether a domestic law must be enacted in order for the treaty to have force in the State.

The former treaties are incorporated directly as a part of the supreme law without any official action whereas a non self-executing treaty requires to go through an official procedure to be enforced in the State.

The UN Charter was held not self-executing as the Human Right principles enshrined was not definitive and certain enough to create justiciable rights for private persons merely upon its ratification.[5]

The courts, however, have the power to supersede or modify International Law in its application.

United Kingdom

With respect to International Law, United Kingdom relies upon the Doctrine of Incorporation which states that International Law is incorporated in domestic law unless it is in conflict with statutory provision.[6]

This provided scope for the domestic laws to adapt to the changes in international principles as they evolved. Lastly, it was held in the case of R v. Chung Chi Cheung[7] that “If common law is based on development in International Law, then evolving customary International Law can overrule the line of common law cases that develop from the old customary law and if the common law is not based on the International law, then the former supersedes the latter.”

INCORPORATION OF INTERNATIONAL LAW IN INDIAN LAW

Legal pluralism is evident in India’s legal system at various instances, a few being personal laws, special reservations for the scheduled caste and scheduled tribes etc.

International law is a part of and is incorporated in India’s domestic law as a part of its pluralistic approach. India, to date has been a signatory to various treaties and conventions and has played a major role in the formulation of these too.

INTERNATIONAL LAW AND THE CONSTITUTION

International principles have played a pivotal role in influencing the formulation of policies and framing of laws. The Universal Declaration of Human Rights was a source of inspiration to the framing of Part III of the Constitution that guarantees the basic fundamental rights.

The Constitution provides certain Directive Principles of State Policy under Part IV. One such Directive Principle is for the promotion of international peace and security. Article 51(c) states that “The state shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another.” Though non-justiciable, the three organs of the government have been working towards fulfilling the particular provision.

The union executive is given powers to exercise rights, authority and jurisdiction exercisable by the government by virtue of any treaty or agreement. In addition to this the executive power also extends to matters that the parliament has powers to legislate.[8] The parliament under Article 253 has the power to legislate any laws to implement any agreement, treaty or convention.

ROLE OF JUDICIARY

Though there is no express provision for the judiciary to exercise any power with regards to International Law, the Indian judiciary, time and again has been placing reliance on international principles to either aid interpretation of domestic law provisions or make up for the vacancy in any existing law.

Various stands with regards to the application of international law in municipal law have been taken.

The Supreme Court held that an international law to become an internal law, must go through the process of transformation and adapt to the municipal law.[9]

Later, the doctrine of incorporation which states that the rules and principles of International Law are incorporated into domestic law and are considered a part of it unless it is contrary to the latter was recognised in Gramophone Company of India Ltd. v. Birendra Bahadur Pandey & Ors.[10].

In the absence of a domestic law with regards to a particular issue, it is an accepted practice for the judiciary to rely upon the international conventions.[11]

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In the recent past, judges have been emphasizing the significance of international principles and placing reliance on various treaties to pronounce judgments. This practice is often observed in dealing with Human Rights issues.

Chief Justice K.Ramaswamy has emphasized the importance of social change and stated that “Article 2(e) of CEDAW enjoins this court to breathe life into the dry bones of Constitution.”[12]

In yet another judgment, it was held that principles of UDHR if needed can be read into domestic jurisprudence.[13]

Therefore, the organs of the government together have been taking efforts to incorporate international law in Indian laws in furtherance to the dualistic approach. India has been an active participant when it comes to treaties and conventions in various fields such Alternate Dispute Resolution, Space Laws, Cyber Laws and Human Rights. As a signatory, the State has ratified many of these treaties to bring it into force.

However, there exists a few grave matters that need attention. Refugee Law is one such issue that needs sorting out. India has remained silent and non-participative towards the Refugee Convention, 1951 and is yet to provide a clear solution to the crisis in the country. Though India is a signatory to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, it is yet to ratify which is proving to be a problem in bringing in stronger sanctions especially considering the current events taking place.

CONCLUSION

International Law contributes to legal systems around the world making it an aspect of legal pluralism. Though not directly binding, the principles provide a framework for the international actors to come together, discuss issues and solve matters. This also improves inter-state relationships and fosters international peace and security. Therefore, it is high time that countries around the world realize the importance of International Law and incorporate the principles enshrined in day-to-day governance. For, this will act as a catalyst to establish a better world to live in.


[1]The Statute of the International Court of Justice art 38(1).

[2]R. P.Anand, Sovereign Equality of States in International Law, Vol.197 No.II R.D.C.29 (1986).

[3] Hersch Lauterpacht, The Function Of Law In The International Community 1(Oxford University Press 2011).

[4]U.S. Const. art. VI, § 2.

[5] Sei Fuiji v. State of California, 38 Cal. 2d 718, (1952).

[6] Trendtex Trading Corporation v. Central Bank of Nigeria, (1977) 2 WLR 356.

[7] [1939] 1 WWR 232.

[8]India Const. art. 73.

[9] Jolly George Verghese v. Bank of Cochin, 1980 AIR 470 (India).

[10] 1984 AIR 667(India).

[11] Vishaka v. State of Rajasthan, AIR 1997 SC 3011(India).

[12] Thirukoli C. Masilamani Mudliar v. The Idol of Sri Swaminathaswami Thirukoli, AIR 1996 SC 1697(India).

[13] Chairman Railway Board v. Chandrima Dass, (2000) 2 SCC 465(India).

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Author

Vaijayanthee
Student - SASTRA Deemed to be University