“EVOLUTION AND IMPACT OF INTERNATIONAL CONVENTIONS ON THE LAW”
Abstract
This Article explores the evolution of international law(convention) from the PEACE TREATIES BETWEEN THE MESOPOTAMIAN CITY OF LAGASH AND UMMA to present. This Article examines how the international convention make and its validity. This Article also cover (in brief) the important international convention which was take place after the second world war which led to formation of international organisation and regional organisation such as UNITED NATION(UN), INTERNATIONAL MONITERY FUND(IMF), WORLD TRADE ORGANISATION(WTO), WORLD BANK, and in regional such as SAARC, ASEAN EU ETC. And in the second part of this Article examines the implementation process of international convention on domestic law of the country’s like British, United State of America and India and also see its requirement for implementation with the help of many theories such as MONISTIC THEORY, DUALISTIC THEORY, SPECIFIC ADOPTION THEORY, DELIGATION THEORY AND HARMONIZATION THEORY. This article examines the provisions of Indian Constitution that deal with power of legislature and executive of the union and International law. This Article also cover the pivotal role of judiciary in the implementation of international law/ convention in India.
Topic: – EVOLUTION AND IMPACT OF INTERNATIONAL CONVENTIONS ON THE LAW
The present scenario of international law/ convention is not the result of 19th and 20th century but it can be traced from the ancient history peace treaties between the Mesopotamian city of Lagash and Umma are considered as starting of international law. The concept of governance and international relations were developed by the Greeks, which laid down the foundation of the international law/ or legal system.
After the peace treaties between the Mesopotamian city of Lagash and Umma there were many declaration and convention time to time in history such as Congress of Vienna (1815), Paris declaration (1856), Geneva Convention (1864), Hague convention of 1899 and 1907, League of Nation (1919), Locarno treaties (1925), Kellogg Briand pact (1928), The United Nation (1945).
The concept of “JUS GENTIUM” (law of nation) was evolved during the reign of the Roman empire, which defined and govern the relation between foreigners and Rome citizens and the status of foreigners living in Rome. Later development of concept of natural law emphasized that certain rights are inherent to all human, which helped in widening the scope of international law.
As we know that law is the order from the sovereign body and we know that in the international level all the states are sovereign in nature so, at internationally no one is superior generally. It is well known to all that all countries are dependent on each other for wealth and development. The law that govern within the country called domestic law similarly that law which govern the conduct between the two or more countries called international law and this law is made by the signing the Agreement, convention and by making treaties between the two or more countries.
For the checking the validity of international law international principles made means these principles must in present in the Agreement, convention and treaties may by explicitly or by impliedly.
- PACTA SUNT SERVANDA
- JUS COGENS
- REBUS SIC SANITBUS
And internationally seven steps taken to enter into any treaties and most of the countries follow it.
- Accredity of persons by contracting states
- Negotiation and Adoption
- Signature
- Rectification
- Adhesion or Accession
- Coming into force
- Registration and publishing
It is important to know that Agreement, Convention or treaties are binding to those countries who are signatories of these and they are called member of the treaties. Treaties are valid only till the international principle is followed either it can be challenge in the International court of justice.
Here and after we’ll see the formation of international organisation and Regional organisation at internationally such as UNITED NATION(UN), INTERNATIONAL MONITERY FUND(IMF), WORLD TRADE ORGANISATION(WTO), WORLD BANK, And in Regional Such as SAARC, ASEAN, EU etc.
World are I and II was the most destructible incident in our past which were lead lot of destruction. World war I happened between 1914 to 1918 and after this incident an international organisation set-up which was called League of nations and the prime objective of this organisation was to promote world peace and cooperation. It was establishing by the Paris peace conference in 1920. However, this failed to prevent the world war II and was replace by the United Nation (UN) In 1946.
In this organisation initially 51 members state and at present 193 members state. And the objective is same as of League of nations.
International monetary Fund which is also called IMF it was establish in July 1944. After the great Depression of the 1930s. initially there was 44 members and at present 190 countries, with staff drawn from 150 nations. After the end of second world war it was need of the hour.
Similarly, the World bank and the World trade organisation also establish for the controlling the situation in world and give hand to the world to stand out from the effect of world was.
As it was well establishing that there are seven continent and Asia, Africa, Europe, North America, Australia, South America, Antarctica. If any treaties or agreement sigh between the countries in terms of regional called International regional organisation.
SAARC (South Asian Association for Regional Cooperation)
ASEAN (Association of southeast Asian Nation)
EU (European Union) etc.
IMPLEMENTATION PROCESS OF International convention or treaties.
As in the above it seen that all the countries are sovereign So, the international law or treaties is not binding domestically and it depends on country to country basis that how it treats international law with domestic law. To understand the exact relation between international law and domestic law some theories given: –
Monistic theory: According to this theory it believes that both international and domestic law (municipal law) are based on Natural law and welfare of individual. So follower of this theory believe that there is no need of separate legislation in municipal level for the implementation of international law. (both are individual)
Dualistic theory: According to this theory, international law and municipal law are two separate legal entities.
Proof: – 1. in terms of different origin: municipal law – WILL OF THE STATE
: international law – COMMON WILL OF THE STATES
2. in terms of different substance: municipal law- individual will of the state; the command which is g given by legislature.
: International law- Pacta-sunt-servenda (agreement between the countries)
3. In terms of different subjects: municipal law- it is for particular individual
International law- it is for state.
Specific adoption theory: – it is also called transformation theory and in this there is need to adopt the international law into municipal law for their application. And it becomes binding when adopted and not before it.
Delegation theory: according to this theory the international law already delegated into municipal law. Such as human rights.
Now further we see in this article that which county follow which theory in his country for international treaty and international customary rule:
In Britain:
International treaty: if it is internationally recognised or of ordinary nature that not affect the municipal law i.e not inconsistence in nature then no separate legislation is required. OR if international treaty is of prime importance then separate legislation needed for the enforcement of the international treaty in municipal law.
If in case of conflict between international treaty and municipal law, then PURPOSIVE INTERPRETATION TO BE DONE.
International customary rule: If international customary rule is consistent with the municipal law then these are part and partial of their own land.
Case: – west rana gold mining co. case (Britain)
It was Held in this case that if the international customary rule is inconsistent with the municipal law then municipal law would prevail. In this type of conflict harmonious construction shall be taken to resolve the conflict.
In United-state of America:
International treaty: According to the section 6 of constitution of USA, says that all the treaty made by united shall be supreme law of the land. And in case of conflict between the international treaty and the USA municipal law then whichever later/newest law will prevail or followed in USA.
CASE: – Pacquete Habana case (USA)
In this case held that the international law is a part of our own land.
Case: Reg V. Ragers
in this case held that the whenever the issue is arising between the international law and USA municipal law then whichever would latest will prevail because the concept of law should be change with the society so newest law will accordance with the present time.
In India:
International customary rule:
Mainly there are two article in the constitution which connected with international. Article 253 and Article 51.
As per Article 51 of the Indian constitution provides for international peace and security but since it is non-justiciable in nature, it becomes the duty of the state to frame laws accordingly.
- promote international peace and security
- Maintain just and honourable relation
- Encourage settlement by arbitration
- Foster respect international law between parties.
As per Article 253 Legislation to give the effect to international agreement by parliament.
In 1973, Honorable Chief justice Sikri held in the case of Keshavanad Bharti case that constitution given the exclusive power to our parliament to make laws for giving effect to any treaty or international agreement with any country or any decisions made at any international conference.
Case law for International customary rule A.D.M Jabalpur case
It was held that these international customary rule are merely ethical principle and we are not bound to follow it. And in case of conflict we will follow our national law.
International treaty
Article 73: executive power for making treaties and Article 253: legislative power for making treaties into effect.
It has two view point 1. It is binding in nature IPSO facto binding then no need to make law for implementation.
2. if not binding then need proper law for implementation.
Case: Grama Phme co. of India ltd. V. B.B Panday (AIR 1948 SC)
it was held in the case that national court shall approve International law only when it dies not conflict with national law. National court be the organ of the state and not the organ of international law, must performed, applied national law if internationala law conflict with it. And national law will prevail over international law.
Author:- SHYAM KUMAR, ASIAN LAW COLLEGE Affiliated from Chaudhary Charan Singh University
