{"id":160644,"date":"2022-01-11T22:06:20","date_gmt":"2022-01-11T16:36:20","guid":{"rendered":"https:\/\/blog.forumias.com\/?p=160644"},"modified":"2022-01-12T16:03:23","modified_gmt":"2022-01-12T10:33:23","slug":"how-india-has-approached-customary-international-law","status":"publish","type":"post","link":"https:\/\/forumias.com\/blog\/how-india-has-approached-customary-international-law\/","title":{"rendered":"How India has approached customary international law"},"content":{"rendered":"\n

News: <\/span><\/b>Parliamentary committee on external affairs has presented a report titled \u201cIndia and international law\u201d in the Lok Sabha.<\/span>\u00a0<\/span><\/p>\n

The report discusses how Indian courts have dealt with international law.\u00a0<\/span> \u00a0<\/span><\/p>\n

What is International customary law (CIL)?<\/span><\/b>\u00a0<\/span><\/h5>\n

CIL refers to <\/span>international law norms derived from a custom.<\/span><\/b> They are binding legal rules that have developed on global or region levels through continued practice.<\/span>\u00a0<\/span><\/p>\n

What has been India\u2019s stand towards CIL?<\/span><\/b>\u00a0<\/span><\/h5>\n

Committee observed that India follows the <\/span>principle of \u201cdualism\u201d.<\/span><\/b>\u00a0<\/span><\/p>\n

This means that international law does not automatically get incorporated into the domestic legal regime.<\/span>\u00a0<\/span><\/p>\n

As per<\/span> Article 253<\/span><\/b> of the Indian Constitution, an act of Parliament is necessary to transform international law into municipal law.<\/span>\u00a0<\/span><\/p>\n

However, according to the analysis of the committee, <\/span>the Supreme Court has digressed from the principle of dualism.<\/span><\/b>\u00a0<\/span><\/p>\n

What has been the Supreme Court\u2019s stand on CIL?<\/span><\/b>\u00a0<\/span><\/h5>\n

Supreme Court moved <\/span>from the principle of dualism towards monism<\/span><\/b>.<\/span>\u00a0<\/span><\/p>\n

SC has been of the view that <\/span>customary international law (CIL),<\/span><\/b> unless contradictory to domestic law, is <\/span>part of the Indian legal regime<\/span><\/b> even if the parliament has not enacted a law for that.<\/span>\u00a0<\/span><\/p>\n

In <\/span>Vellore Citizens Welfare Forum v. Union of India<\/span><\/b> it held that CIL which is not contrary to the municipal law shall be deemed to have been incorporated in India\u2019s domestic law.<\/span>\u00a0<\/span><\/p>\n

This principle has been affirmed in subsequent decisions like in <\/span>Research Foundation for Science v. Union of India.<\/span><\/b> Here<\/span>, the SC, relying on the Vellore Citizen case, <\/span>declared that the precautionary principle<\/a><\/span>, <\/span><\/b>an environmental law concept, is part of CIL and thus part of Indian law. \u00a0<\/strong><\/p>\n

What are the positives of this practice?<\/span><\/b>\u00a0<\/span><\/h5>\n

Most countries have been incorporating CIL as part of the domestic legal regime, so the Supreme court\u2019s practice is <\/span>in line with international practice.<\/span><\/b>\u00a0<\/span><\/p>\n

It provides judiciary with an opportunity for <\/span>making the law progressive,<\/span><\/b> e<\/span>sp when the executive and the parliament for ideological or political persuasions fail to enact laws transforming a liberal international legal norm into domestic law.<\/span> \u00a0<\/span><\/p>\n

What are the challenges that still remain?<\/span><\/b>\u00a0<\/span><\/h5>\n

CIL is sometimes very easily accepted as part of Indian law. <\/span>For instance, the Supreme Court quite readily accepted the precautionary principle, but it is yet to get wide global acceptance.<\/span>\u00a0<\/span><\/p>\n

However, SC <\/span>hasn\u2019t been consistent<\/span><\/b> in incorporating CIL.<\/span>\u00a0<\/span>Example<\/strong>: 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<\/a><\/strong><\/span> being part of CIL. <\/span>\u00a0<\/span><\/p>\n

It <\/span>goes against the democratic practice<\/span><\/b> and creates a <\/span>democratic deficit<\/span><\/b>.<\/span>\u00a0<\/span><\/p>\n

As judicial incorporation of international law is the violation of separation of power and judiciary overtaking Parliament\u2019s right. The committee argues that this could become a bone of contention between the judiciary and the other organs of the state.<\/span> \u00a0<\/span><\/p>\n

What is the way forward?<\/span><\/b>\u00a0<\/span><\/h5>\n

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.<\/span>\u00a0<\/span><\/p>\n

Recommendation for executive: <\/span><\/b>However, the Committee recommends that the <\/span>executive<\/span><\/b> should try to fill in the vacuum in domestic legislation on customary international law and should develop adequate domestic law.<\/span>\u00a0<\/span><\/p>\n

Recommendation for the Judiciary: <\/span><\/b>Determination of whether a particular provision should be treated as a binding customary norm under international law requires the fulfilment of two conditions.<\/span>\u00a0<\/span><\/p>\n

One that the <\/span>state practices it <\/span><\/b>and second of the <\/span>opinio juris <\/span><\/b>(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.<\/span>\u00a0<\/span><\/p>\n

Source:<\/span><\/b> This post is based on the article \u201c<\/span>How India has approached customary international law\u201d <\/span><\/b>published in\u00a0The Indian express<\/strong>\u00a0on<\/span>\u00a011th<\/sup>\u00a0Jan 2022<\/span><\/b>.\u00a0<\/span>\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

News: Parliamentary committee on external affairs has presented a report titled \u201cIndia and international law\u201d in the Lok Sabha.\u00a0 The report discusses how Indian courts have dealt with international law.\u00a0 \u00a0 What is International customary law (CIL)?\u00a0 CIL refers to international law norms derived from a custom. They are binding legal rules that have developed… Continue reading How India has approached customary international law<\/span><\/a><\/p>\n","protected":false},"author":10328,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"footnotes":""},"categories":[1230,9],"tags":[212,10496],"class_list":["post-160644","post","type-post","status-publish","format-standard","hentry","category-9-pm-daily-articles","category-public","tag-gs-paper-2","tag-times-of-india","entry"],"jetpack_featured_media_url":"","views":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts\/160644","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/users\/10328"}],"replies":[{"embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/comments?post=160644"}],"version-history":[{"count":0,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts\/160644\/revisions"}],"wp:attachment":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/media?parent=160644"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/categories?post=160644"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/tags?post=160644"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}