How India has approached customary international law

News: Parliamentary committee on external affairs has presented a report titled “India and international law” in the Lok Sabha. 

The report discusses how Indian courts have dealt with international law.   

What is International customary law (CIL)? 

CIL refers to international law norms derived from a custom. They are binding legal rules that have developed on global or region levels through continued practice. 

What has been India’s stand towards CIL? 

Committee observed that India follows the principle of “dualism”. 

This means that international law does not automatically get incorporated into the domestic legal regime. 

As per Article 253 of the Indian Constitution, an act of Parliament is necessary to transform international law into municipal law. 

However, according to the analysis of the committee, the Supreme Court has digressed from the principle of dualism. 

What has been the Supreme Court’s stand on CIL? 

Supreme Court moved from the principle of dualism towards monism. 

SC has been of the view that customary international law (CIL), unless contradictory to domestic law, is part of the Indian legal regime even if the parliament has not enacted a law for that. 

In Vellore Citizens Welfare Forum v. Union of India it held that CIL which is not contrary to the municipal law shall be deemed to have been incorporated in India’s domestic law. 

This principle has been affirmed in subsequent decisions like in Research Foundation for Science v. Union of India. Here, the SC, relying on the Vellore Citizen case, declared that the precautionary principle, an environmental law concept, is part of CIL and thus part of Indian law.  

What are the positives of this practice? 

Most countries have been incorporating CIL as part of the domestic legal regime, so the Supreme court’s practice is in line with international practice. 

It provides judiciary with an opportunity for making the law progressive, esp when the executive and the parliament for ideological or political persuasions fail to enact laws transforming a liberal international legal norm into domestic law.  

What are the challenges that still remain? 

CIL is sometimes very easily accepted as part of Indian law. For instance, the Supreme Court quite readily accepted the precautionary principle, but it is yet to get wide global acceptance. 

However, SC hasn’t been consistent in incorporating CIL. Example: In the Mohamad Salimullah v. Union of India, the court refused to stop the deportation of Rohingya refugees to Myanmar despite the principle of nonrefoulement being part of CIL.  

It goes against the democratic practice and creates a democratic deficit. 

As judicial incorporation of international law is the violation of separation of power and judiciary overtaking Parliament’s right. The committee argues that this could become a bone of contention between the judiciary and the other organs of the state.  

What is the way forward? 

India has indeed moved away from the principle of dualism towards monism by judicially incorporating not just CIL but also international treaties, including those treaties that India has not signed. 

Recommendation for executive: However, the Committee recommends that the executive should try to fill in the vacuum in domestic legislation on customary international law and should develop adequate domestic law. 

Recommendation for the Judiciary: Determination of whether a particular provision should be treated as a binding customary norm under international law requires the fulfilment of two conditions. 

One that the state practices it and second of the opinio juris (belief that the custom is part of the law). The Supreme Court needs to conduct such an analysis before incorporating the CIL in domestic law. 

Source: This post is based on the article “How India has approached customary international law” published in The Indian express on 11^th Jan 2022.