Author Name:   Rohan Dua

International treaties/conventions are mechanisms devised by the international community at large for the countries to follow for the good of all.

The International Treaties/Conventions and their Influence in India

·A treaty, as the name suggests is an understanding reached between two or more entities which could be sovereign states or international organizations. The subject matter of the treaty would obviously be of vital importance to the parties to the agreement. It also implies that the agreement arrived at would conform to international law. Furthermore, international law dictates that many of these treaties & conventions would be applicable to all the countries irrespective of whether they had signed the agreement or not.

·Here mention must be made of the Vienna Convention on the Law of Treaties which regulates all aspects of treaty making between states. While India has not ratified this convention yet, the Supreme Court has recognized its customary status. In this regard it is important to note that under the Indian Constitution and as per various judicial pronouncements, international law is not considered domestic or national law unless legislation to that effect has been passed by an Indian Legislature. Thus an international treaty is not enforceable in India unless it has been ratified by the Parliament. In this regard India follows the ‘dualist ‘theory of law, that is, international law is different from national law unlike the ‘monist’ theory which stipulates that international law automatically becomes national law. Theoretically speaking, however, it is always open to the Parliament to reject a treaty entered into by the Executive whereupon the treaty will have no effect whatsoever. Moreover, if any treaty or agreement violates any of the provisions of the Constitution, it will have no validity in our country and even the provisions of the Vienna Convention would not be of any help.

·Parliament is competent to make a law laying down the manner and procedure according to which treaties and agreements shall be entered into by the Executive as also the manner in which they shall be implemented. It bears repetition to say that under our Constitution, treaty-making power is not vested in the Executive or the President – as has been done in some other Constitutions. It is squarely placed within the domain of the Parliament. Theoretically speaking, Parliament can by making a law prohibit the Executive to enter into a particular treaty or a particular kind of treaties; similarly, it can also direct the Executive to enter into a particular treaty or may disapprove or reject a treaty signed and/or ratified by the Executive. It is a different matter that Parliament has not chosen to make a law in that behalf, leaving the Executive totally free to exercise this power.

Research Questions:
What is the significance of the international Treaties/Conventions under International law?
International treaties/conventions set norms/yardsticks for countries in framing policies and making laws on various subjects. They also lay down benchmarks for the Indian judicial system to fill gaps in matters where there are no clear cut policies or legal provisions in the Indian legal system. Case in point can be the Visakha v. State of Rajasthan, where the Supreme Court sought help of international conventions for the purpose of construction of Domestic law.

The Court observed:
In the absence of domestic law occupying the field to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with Human dignity in Articles 14, 15, 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions to enlarge the meaning and content thereof, to promote the object of the Constitutional guarantee.

·International treaties/conventions also help the country in settling disputes with foreign states. Shimla Agreement 1972, the agreement with Bangladesh on sharing of Ganga waters and agreement with Nepal on harnessing water resources though not international treaties but bilateral ones can be cited as examples in this regard.

·Countries are becoming more and more dependent on each other on account of globalization set in motion due to advances in communication and information technology. The importance of international treaties therefore needs no emphasis. GATT/WTO agreements are cases in point.

·India is a growing economic power and it has a vital role to play in international treaties. While India should not remain insulated it has also got to be watchful because it may so happen that some international treaties and conventions may not be in the interest of the nation in the long run. Agreements relating to intellectual property rights, trade, agriculture and services may be biased in favor of the developed countries and detrimental to our interests. Therefore, the executive needs to take utmost care while signing treaties and must take the parliament into confidence.

·International treaties/conventions also assist the country in truly becoming global.

What is the jurisprudence behind the Article 253 of constitution that deals with legislation of giving effect to International Agreements?
·Under the Indian Constitution Article 246 read with entries 14, 15 and 16 of the Union List, it is the parliament which has the exclusive power to make laws concerning treaties and agreements with foreign countries.

·Under Article 253 of the Indian Constitution, the Indian parliament has the sovereign power to legislate on subjects in List 1 and List 2 of the seventh schedule of the constitution for implementing “any treaty, agreement or convention with any other country or countries for any decision made at any international conference, association or other body”. It is worth noting here that List 2 contains subjects in the domain of the State Legislature.

In other words it is the Parliament and not the State Legislature which is competent to approve treaties even in respect of subjects in the state list. This has been ratified by the supreme court in the Maganbhai Ishwarbhai Patel v. Union of India case wherein Justice Shah had rightly observed “The effect of Article 253 is that if a treaty, agreement or convention with a foreign State deals with a subject within the competence of the State Legislature, the Parliament alone has, notwithstanding Article 246(3), the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body. In terms, the Article deals with legislative power; thereby power is conferred upon the Parliament which it may not otherwise possess. But it does not seek to circumscribe the extent of the power conferred by Article 73. If, in consequence of the exercise of executive power, rights of the citizen or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation: where there is no such restriction, infringement of the right or modification of the laws, the executive is competent to exercise the power.” Therefore, any international treaty or convention, if it has to become binding on the country, it has to be approved by the Indian parliament. In other words, it is the Indian parliament, who represent the people of India has the inherent power to decide whether an international treaty/convention/agreement is good for the country or not. Article 253, thus empowers the people of India to decide whether an international treaty or convention should be followed or not.

·The reality in the Indian Context, however, is that the Parliament has so far not made any laws regulating the procedure for entering into treaties and implementing them. In the absence of such legislation it is left open to the executive to sign and ratify international treaties. Article 73 of the Indian Constitution empowers the executive, in the absence of parliamentary legislation to make decision on matters on which the Parliament has the power to make laws. This is how the Indian executive has been entering into international treaties and agreements. Taking advantage of the fact that Parliament has chosen not to make any law regulating the treaty-making power, the Union Government has been, taking advantage of Article 73 of the Constitution, freely entering into treaties on its own without reference to the Parliament. Only where legislation is required to give effect to the terms of a treaty or a convention or a covenant has the Central Government been approaching the Parliament to make laws in those terms. By way of example, it would be instructive to notice what happened in the case of TRIPs agreement.

The draft Agreement (on TRIPs) – which according to the HDR 1999, published by UNDP, was being pushed mainly by the multi-national drug companies – ran counter to almost each and every major premise of the “Background” paper submitted by India to the Negotiating Committee on July 27, 1989. India was evidently rattled by the draft Agreement on TRIPs produced by the Conference. The Government probably thought it would be appropriate to bring the matter to the notice of Parliament. Accordingly, the Standing Committee of Parliament attached to the Commerce Ministry consisting of forty Members of Parliament drawn from all political parties, considered the draft Agreement and submitted a Report on November 13, 1993.

The Standing Committee opposed all the major stipulations and terms contained in the draft agreement. It opined that product patent system should not be imposed on India since it would result in steep increase in prices of medicines. It said that it should be left to the Indian state to determine whether it will go in for product patent or not. The Parliamentary Committee also opposed the 20-year period for the patents and the provision of the draft agreement which entitled the patent holder not to manufacture drugs and medicines within India while at the same time enjoying the benefits of patent in India. It also apposed the onerous conditions attached for permitting transition period to countries like India (which were not only developing countries but also did not recognize product patent till then). What is relevant to mention however is that the Government of India signed the TRIPs agreement in 1994, practically in the same shape as the draft agreement, without again approaching the Parliamentary Committee or the Parliament. The question that arises in such a situation is what was the relevance of consulting the Standing Committee of Parliament and then signing the agreement in total disregard of the Report and recommendations of the Parliamentary Committee. It is obvious that had there been a law regulating the treaty-making power of the Government and if such law had provided for either prior approval, ratification, consideration or discussion of the treaty before it comes into force, such a thing could not have happened. It needs to be emphasized that TRIPs agreement is not the only agreement signed by the Government of India in the course of Final Round of Uruguay negotiations. We have signed several agreements concerning trade, services, agriculture and so on - all of which seriously impinge upon our economy, upon our agriculturists, businessmen and industrialists. The supremacy of the Parliament has been upheld by courts. For instance “Maganbhai Ishwarbhai Patel Vs Union of India (1970) 3 SCC 400 = AIR 1969 SC 783 and Bombay high court judgment in P.B. Samant vs. Union of India (1994 Bombay 323).

·In Maganbhai Ishwarbhai Patel vs. Union of India [1969 SCR (3) 254], the apex court on 9 January, 1969, had said once a treaty was concluded by the Government in exercise of its sovereign powers, it was the duty of all three branches - Legislature, Executive an Judiciary - to help implement it if it was within the constitutional framework.

Conclusion:
As discussed above international/ bilateral treaties play a very important role in fostering international and bilateral cooperation in various fields affecting the lives of people and promoting peace and harmony. As already indicated above the Indian Constitution contains provisions to that effect in article 51(c). The question, however, is that who decides which treaty is good for the country and which authority is competent to decide on the same. Under the Indian Constitution and as affirmed by various judicial pronouncements it is the Indian Parliament which is supreme in deciding such matters. Article 253 of the Indian Constitution is very clear on that. However, the Indian Parliament has not made any law as yet regulating the procedure for the Indian government to enter into international/oblique bilateral treaties. In the absence of the same under article 73 it is the executive which is signing international agreements sometimes without taking the parliament into confidence. While it may not be pragmatic to have the Parliament approve all treaties. It will be appropriate to take a balanced view on the subject and have some kind of legislation empowering the executive to sign treaties subject to certain conditions. The Parliament may mandate certain kinds of treaties to be approved by it prior to its signing by the executive. Certain kinds of treaties on the other hand may be left entirely to the discretion of the executive.

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