International Conventions and India’s Dualist Perspective

International Conventions have been first listed under the UN Charter 1945 in Article 38 which lays down the relevant sources of International Law. They may be general or particular in nature, but are expressly recognized by the ‘contesting states.’

International Conventions may be described as agreements between countries. It may also be referred to as a ‘contract between states.’

Conventions are usually agreements between two or more states. They lay down a set of rules for these states to act upon in order to bring about a greater change in certain global aspects or even at the domestic level. Conventions are used synonymously with Treaties and Covenants[1]. The former has been defined under the Vienna Convention of 1969. Conventions are usually sanctioned by an overseeing international body like the United Nations or its related organizations whereas treaties are agreed upon by individual state parties to resolve issues faced by them mutually. Fundamentally, Treaties are written agreements between the states. They are usually governed by International Law.

Treaties may be majorly defined as bilateral as well as multilateral treaties. With regard to the latter agreements being a source of law, these may also be defined as Law-making treaties. The former often represent bilateral negotiations which are usually a result of mutual interest of the states to engage in the same.

Such treaties have a stronger legal standing in terms of their binding nature upon a large number of states. The examples of the same are the Convention on Biodiversity (CBD), United Nations Framework Convention on Climate Change (UNFCCC).

For the purpose of the drafting of such treaties or conventions, a study is carried upon by an international institution over a major concern. The result is usually an international conference that decides upon the nuances of the convention to be drafted. The drafted convention is then opened for signatures for the purpose of signifying their agreement to the document. Further, a ratification process is carried out for the treaty to come into force. This process comes into fruition when the relevant organs of the state’s consent to abide by the rules of the treaty. There is also a chance that the states might ratify the draft convention with reservations in relation to certain aspects of a specific obligation or condition.

A treaty is often assumed to be in accordance with the Vienna Convention and the parties to it are bound in good faith. A treaty may be subjected to termination in case a state is succeeded by a new one, wholly or partially. Disputes arising from such treaties are often resolved through mediation, conciliation as well as arbitration.

The International Court of Justice is another adjudicatory recourse but it is only applicable in cases brought to it by the states specifically. They are brought under its jurisdiction through a compromis. These also provide a mode of interpreting the various provisions in case of conflicting perspectives by presenting them with an authoritative clarity.

It is important that the states can meet their international obligations without being hindered by the domestic laws in place.

In the case of India, it is a dualist state. In International Law, it implies that the International norms are not directly applicable. It should always be translated into national legislation before it may be applied by the states.

There are two major methods of Treaty adoption in a dualist state – incorporation, and transformation. Once such International treaties are adopted, they are often accorded a higher status than the domestic law, superseded by the Constitution.

In the case of India, Vishakha v State of Rajasthan[2] recognized sexual harassment at the workplace as a ‘social problem of considerable magnitude’. In absence of domestic norms to address such issues, India’s international agreements were crucial for achieving this purpose. For the same, the Court referred to India’s ratification of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) which includes Article 11(1) (a, f) that emphasizes upon the right to work and the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. Article 24 declares that States parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention. In addition to this, the Court provided employers and all other relevant organizations with guidelines also known as ‘Vishakha Guidelines’ to ensure prevention of sexual harassment. These were to be considered appropriate until legislation was passed.

In the National Legal Services Authority v. Union of India Judgement, the Court emphasized upon the Articles 14, 19, and 21 also known the ‘golden triangle’ in light of the essential Fundamental rights it assures to its beneficiaries. It then proceeded to interpret these principles in light of Human Rights Conventions and principles. The right to equality as well as non-discrimination is the basic principles enshrined in the UN Charter. The United Nations Human Rights Declaration unequivocally declares that all human beings are born free and equal. This also includes the rights of LGBTQ folks. This is quite similar to the right recognized by Article 14 of the Indian Constitution. Thus, such International conventions may be easily incorporated into the Fundamental Rights of the Constitution to ensure that in absence of any adequate provisions, the same might be applicable if non-contra venous with the essence of the Domestic laws.

Vellore Citizens Welfare Forum v. Union of India & others[3] raised the pertinent question as to whether the concept of sustainable development as a balancing aspect between ecology and development should be accepted as a part of customary international law. In addition to this, the question as to the incorporation of rules of customary international law into domestic law was taken into account.

PUCL v Union of India[4] expanded the scope of privacy and the importance of studying surveillance with regard to Constitutional safeguards of the beneficiaries. This leads us to infer that any provision mirroring the essence of these rights shall be applicable and accepted to be emulated by the relevant jurisdiction.

G. Sundarrajan vs Union of India & Ors.[5] had the Court using Customary International Law and relevant treaties that were not even ratified by India including the Nuclear Non-Proliferation Treaty. It even took into account the International Atomic Energy Agency (IAEA) to maximize the contributions ‘from nuclear technologies to human well-being while minimizing their risks.’

The case of ADM Jabalpur v Shivkant Shukla[6] displayed a significant effect of the Universal Declaration on Human Rights upon the Indian Constitution apart from the fact that India is also a signatory to it. The basic essence of the Declaration is that the world is bound up with the interests of human beings primarily. However, the court deviated from this path but with the passing of years, it has come to interpret that such conventions ensuring Human Rights should be always placed on a higher pedestal. Thus, it leads to the conclusion that there has been a crucial shift in consistence with the mandate laid down within the Universal Declaration of Human Rights.

In the case of Jolly George Verghese v, The Bank of Cochin[7], the Supreme Court pondered upon the validity of section 51 of the Civil Procedure Code. It was incessantly argued that this section was inconsistent with the Article 11 of the International Covenant on Civil and Political Rights which protects from arbitrary arrest on account of inability to fulfil a contractual obligation. Thus, it was stressed that this section of the CPC should be interpreted in accordance with the International obligations of the State.

The landmark judgement of Kesavananda Bharati[8] re-emphasized the basic principles of the Constitution which mirrored the philosophy upon which the United Nations Charter was laid down.

The case of John Vallamatom v. UOI[9] was primarily concerned with the determination of constitutionality of the Section 118 of the Indian Succession Act, 1925. It was considered to be a pre-constitution statute. The same is determined in light of the Declaration on the Right to Development as well as Article 18 of the United Nations Covenant on Civil and Political Rights, 1966. This elaborates upon the right to possess freedom of thought, conscience and religion. It was based upon the approach that while the world is witnessing a ‘sea change’ in the social relations, India should rightly take them into account.

The abovementioned analysis of the various judgements has provided enough evidence as to how the Indian Jurisprudence revolving around the interpretation and the application of the treaties that its has ratified or may not have has changed the face of adjudication. It also highlights the dualist approach that the Indian state has adopted in the face of various changes in the society by being accommodative of the International perspective at play.