The guiding principle is that statutory provisions align with international
law. Courts aim to interpret laws in such a way that they don't conflict with
international law, even if there is an inconsistency between the two. Clarity
and unambiguity of terms may allow for enforcing a statute despite international
and state laws being at odds. Parliament is presumed not to act in violation of
international law or treaty obligations.
The presumption exists that if India signs a treaty, it does not intend to
breach said treaty according to courts.
In the realm of international relations and law, one principle that is widely
embraced is the "presumption against the violation of international law." It is
an expectation that states abide by customary international law regulations and
their international legal obligations.
This phenomenon is often exemplified by a country's adoption of a foreign policy
measure or implementation of a new law. The ambiguity revolving around whether
this action adheres to international law or contravenes it remains unclear. This
leads to the assumption being made that the said state's performance is not
breaking any international laws. This assumption translates to the idea that
states act as per international law unless otherwise proved wrong.
As a rule, international law assumes that states uphold their legal
responsibilities, though if hard proof indicates otherwise, this notion can be
debated. Consequently, sanctions or penalties may be levied by international law
due to a state's neglect to satisfy its commitments.
Stability in international relations can only be maintained through the
presumption of innocence. This is because it motivates states to comply with
their international legal obligations while shifting responsibility to those
making accusations. The prevalence of evidence is necessary to prove violations
of international law and ensures that all parties involved are responsible for
their actions. This is why the presumption of innocence is crucial for
Near a controversial border, State A performs military drills, causing State B
to claim violations of international law and a threat to territorial
sovereignty. Despite the protest, State A argues its use of its own territory
does not break any international laws.
The presumption is that State A follows international law and doesn't cross
State B's sovereignty, as per current events. To change this, concrete evidence
is required from State B that gives proof of State A's violation of
international law. Without it, State A will still have the advantage.
Illustrating an example, it emphasizes that the burden of proof against the
violation of international law was laid upon the state which claims violation
and hence, the necessity of providing irrefutable evidence arises.
Article 253 of the Constitution of India
Pertaining to international treaties and agreements, Article 253 of the Indian
Constitution outlines the Parliament of India's legislative power.
International agreements can be given effect through legislation according to
Parliament has the power to make laws for implementing international treaties
and decisions, for the whole or part of India. This includes agreements and
conventions with other countries, as well as conferences or associations with
other bodies. These provisions are independent of any preceding laws outlined in
India's Parliament has the power to enact laws that put international agreements
and treaties into action within the country. To fulfil its international
commitments, Parliament can establish legislation as needed. This affirms the
idea that any international pact entered into by India demands domestic
legislation to make certain it is enforced appropriately.
Interplay between International Law and Domestic Law
India's Supreme Court grapples with comprehending the intricate interplay
between their domestic legal framework and international law. The far-reaching
effects of international law span various domains including human rights,
investment, trade, the environment, and health and have significantly impacted
countries worldwide. Consequently, comprehending the relationship between
international law and domestic law holds immense significance.
The omnipresent nature of international law demands an accurate understanding of
its implications. In comparison to certain nations, that regard international
law as a part of their legal system (termed the principle of monism), India
follows the principle of dualism. Here, international law doesn't become
enforceable under the Indian constitution until the passing of domestic
regulations that put it into action. This can be seen in Article 253, which
grants parliament the authority to create laws that implement international law.
- In Jolly George Vargheese v. Bank of Cochin, AIR 1980 SC 470,
1980 SCR (2) 913, Supreme Court followed the doctrine of presumption and
assumed that the International Covenant on Civil and Political Rights 1966
is binding on Indian Courts because India is the member.
- In Mirzaali Akbar v. The United Arab Republic, AIR 1966 SC 230,
1966 SCR (1) 319, the case against the foreign ruler in the Calcutta court
was held not maintainable as the Government did not give consent.
- In the case of Jeeja Ghosh v. Union of India, the Supreme Court declared
its verdict, which reads as follows:
For its affirmation of the dignity of individuals with disabilities, the
recent case is worthy of recognition. It arose from a public interest litigation
filed after Spice Jet unjustly removed Jeeja Ghosh from a flight due to her
disability. The court decreed the airline's actions illegal and mandated a
payment of Rs. 10 lakhs to the petitioner. Furthermore, the court referenced
international law in support of the rights of individuals with disabilities in
coming to this decision. India's internal legislation must abide by
international commitments, according to para 13 of the ruling.
The VCLT, or Vienna Convention on the Law of Treaties from 1963, contains
provisions stating that countries cannot use their own internal laws as excuses
for failing to fulfil treaty obligations. Article 27 specifies this limitation
for "State parties," while Article 26 mandates that countries perform their
treaty duties with sincerity and good intentions. This principle decrees that
every treaty signed by a country is binding on them.
In the international arena, there are substantial implications to the
presumption against violation of international law. It is a fundamental element
in upholding worldwide conditions and encouraging a structured global system.
Sanctions, reputational damage, or even military intervention are possible
punishments for global violations, which successfully deters governments. This
system of global incentives motivates states to comply with international norms
and agreements, effectively reducing the chances for hostile confrontations.
Essentially, the presumption of these deterrent measures is extremely potent.
Encouragement of accountability and cooperation is the second benefit of
following international obligations. This requires states to conform their
internal laws and actions in line with the international agreements they have
made. In turn, this collaboration results in the joint effort towards the
preservation of the environment, protection of human rights, trade promotion,
and peacekeeping. Failure to comply with the agreements may result in diplomatic
conflicts, legal suits, and charges, incentivizing states to comply with their
Promoting stability, cooperation, and safeguarding global rights is the
fundamental principle of the presumption against violating international law. By
creating a shared legal framework, states are reminded to uphold a conduct that
encourages predictability and orderliness in the world.