By Sri Y.Srinivasa Rao, Principal Senior Civil Judge, Tirupati.
All treaties between great states cease to be binding when they come in conflict with the struggle for existence. – Otto von Bismarck.
A ‘treat ’ is a formally concluded and ratified agreement between States. The term is used generically to refer to instruments binding at international law, concluded between international entities (States or organizations). Under the Vienna Conventions on the Law of Treaties, a treat must be (1) a binding instrument, which means that the contracting parties intended to create legal rights and duties; (2) concluded by states or international organizations with treaty -making power; (3) governed by international law and (4) in writing. Treaties may be bilateral (two parties) or multilateral (between several parties) and are usually binding only on the parties thereto.
International agreement is concerned, a formal and legally binding arrangements with a defined scope and fewer parties. Agreements are the instrument by which states and other subjects of international law, such as certain international organizations, regulate matters of concern to them. Agreements are more often used in the bilateral contexts. Again, the “agreement” is also synonymous of “treaty”. See. UNICEF Document on the Convention on the Rights of the Child.
Further, it is important to note that the word ”Convention” is usually used for multilateral agreements. This generic term is synonymous with that of the word “treaty”. Conventions are normally open for participation by the international community as a whole, or by a large number of states. Similarly, the term ‘declaration’ is normally used for bilateral or multilateral instruments which by nature are declaratory and not legally binding. For example. See. Human Rights declaration.
Legal and Treaties Division of the Ministry of External Affairs was created in 1957 as a nodal point to deal with all aspects of International law advise to the Government of India. This Division is the sole source of legal advice for the Ministry of External Affairs. In addition, it also advises other Ministries/Departments of the Government of India on all matters concerning International law and conclusion and interpretation of treaties.
To make a Treaty, whether the legislative action is required?:-
According to the Indian Constitutional scheme, making of international treaties is an executive act. A Treat is concluded with the approval of the Union Cabinet. It is not placed before the Parliament for discussion and approval. However, where the performance of treaty obligations entail alteration of the existing domestic law or requires new enactment, it world accordingly require legislative action.
What are the treaty making formalities?:-
(i) Drafting and Negotiation; (ii) Approvals; (iii) Full Powers; (iv) Ratifcation; (v) Accession; (vi) Credentials; (vii) Amendment of a Treaty; (viii). Review of Treaties.
The Ministry of External Affairs is overall in-charge of international treaty making activities. The administrative Ministry is the nodal agency for preparation of drafts, consultations and negotiations. Multilateral treaties are mostly negotiated in international conferences.
- According to tee Second Schedule to the Government of India (Transaction of Brsiness) Rules, 1961, the approval of the Cabinet is imperative for all treaties (which include conventions, agreements, MoUs, MoCs, MoAs & protocols etc.,) to be signed with any foreign agency /country. See. 3 Refer para 2(ii) of the Cabinet Secretariat’s O.M. No.1/48/6/2015-Cab, dated 3 June 2015; O.M. No. 1/48/6/2015- Cab, dated 24 April 2015; O.M. No. 1/50/3/2014-Cab., dated 9 February 2014.
- Ambassadors or High Commissioners may initial treaties with the country to which the are accredited. They would however require Full Powers if designated to sign tee treat formall . Full Powers are not required when a treaty is signed in the presence of the President or the Prime Minister of India.
- Where a treaty does not provide for its entry into force upon its signature onl , and makes it subject to ratification, the treaty requires ratification. Multilateral Treaties are always subject to ratification. The treaty is ratified by obtaining the Instrument of Ratification under the signature and seal of the President of India.
- Credentials confer the authority to participate in negotiations as representatives of the Government of India, and to initial the treat at the conclusion of negotiations. The purpose of initialing is to confirm the status of the text of tee treat negotiated.
- Generally , treaties contain provisions in their final clauses stipulating procedure for their amendment. The parties may agree for amendment of the treaty at any time by mutual written consent of the parties.
- Most of tee bilateral Agreements/MoUs contain a clause for the periodical review of the activities undertaken under the Agreements/MoU.
Indian Government today cannot take decisions behind closed doors and expect the people to back them too. This is an onerous task that the diplomatic community and the democratic and responsive governments have to contend with. India often enters into agreements with other countries. Two types of agreements are treaties and executive agreements. India today is a member of a large number of such organisations, like, G-20, BRICS, IBSA, EU, ASEM, IOR, ASEAN and EAS, CICA, SAARC, NAM and many more. India remains engaged with the international community at several levels to promote its political, security and economic interests. Security has now become the dominant concern not only for India but for the whole world. It is an intra-regional and intra-continental concern because it is one issue that no single country can tackle by itself whatever means of defence and extent of resources it may possess. In US, the United States Constitution art. 2, § 2 dictates that treaties are international agreements that have received the advice and consent of two-thirds of the Senate and have been ratified by the President. There are two types of treaties. Bilateral treaties are agreements made by two countries. Multilateral treaties are agreements made by three or more countries. As chief executive of the United States, the President has the authority to create international agreements with other nations without Senate approval. These international agreements are called executive agreements.
Treaties and International Agreements:-
During the period of 2013, the security scenario both in Pakistan and Afghanistan was a worrying factor, particularly in the projected withdrawal of the US defence forces from Afghanistan in 2014. Pakistan’s internal security problem spilling into Afghanistan creates political instability for the entire South Asian region.India underlined its friendship with Bangladesh when President Pranab Mukherjee chose to make Bangladesh the first country for his foreign visits in September 2013. A major step towards economic cooperation and integration was taken when Prime Minister of India inaugurated the India-Bangladesh Grid Interconnection to feed 500 MW of power into Bangladesh system, and laid the foundation of 1320 MW thermal power project to be executed in Bangladesh as a joint venture. On top of it the Pakistan National Assembly and the Punjab (Pak) Assembly passed resolutions blaming and condemning the Indian army for the LOC violations. The Indian Parliament took a strong exception at the resolutions and rejecting them, adopted a resolution against the Pakistani violations thereby causing casualties on the Indian side. The Resolution said: “Our restraint should not be taken for granted nor should the capacity of our armed forces to ensure the territorial integrity of our nation.”
In East Asia, An India – China Media Forum was set up ealrier enable the journalists of the two countries to interact with each other independently and create fund of goodwill and understanding between the two media organisations. The first meeting of this forum took place in New Delhi in September 2013. In September 2013 Security Dialogue with Korean Republic was initiated and the Korean Air Chief was welcomed in New Delhi in November. In June India and Singapore singed a Defence Cooperation Agreement. In 2013, India also welcomed the ‘recent steps taken by Syria to accede to the Chemical Weapon Convention” which was in alignment “with India’s consistent stance of supporting the complete destruction and elimination of chemical weapons world wide”. India believed that this development would “invigorate the peace efforts towards a political solution to the Syrian conflict”. Even otherwise India remained engaged with the West
The opportunities for India-Africa cooperation in diverse sectors are immense and vast. The unique youth outreach programme – “INDIAAFRICA-A shared Future” invites creative exchanges between young Africans and Indians through a multidisciplinary contest series and a Young Visionaries Fellowship Program.
India’s strategic partnership with the US was strengthened during the year as a result of developing partnership with the US on several issues. The relations were best described by the Prime Minister during his visit to New York and Washington in September when he said that the “United States is one of our most important strategic partner and during
President Obama’s regime, we have taken several steps to widen and deepen this partnership in diverse fields”. He went on to describe the US “as one of the most important partner providing investment and technology support for India’s development.”
As to relationship with Europe is concerned, the relations with Russia remained robust and there was interaction at all the levels as in the past including the annual Summit meeting this time in Moscow. During 2013,
these were the key areas of bilateral partnership which had the pride of place in their discussions, beside the subjects of security, terrorism, regional and international peace etc.
Collective solutions and efforts on regional or intraregional basis:-
The world is today afflicted by diverse problems of trade and commerce, financial slowdown, terrorism and security, environment and climate change, and the like which cannot be solved by any one country individually. These problems need collective solutions and efforts on regional or intraregional basis. Action at that level needs consultations and discussions at multilateral level. Hence the need for multilateral forums where such discussions could take place. To fulfil this need several groupings at various levels have been formed. Some of these groupings are the European Union, ASEAN, East Asia Summit, BIMSTEC, ASEM, SAARC, CICA, SCO, SICA, CELAC, SADC, ECOWAS, G.20, Conference of Parties (CoP), WTO, SCO, Pacific Islands Forum, and GCC. These groupings meet periodically to discuss their common problems and find solutions which could be applied universally or selectively across the board. Considering India’s size and resources and reach, it is now member of most of these groupings.
In Indian, the Database prepared and managed by the Legal and Treaties Division of the Ministry of External Affairs strives to provide an accessible and searchable link or series of links to the Treaties/Agreements/MoUs etc., which have been entered into by the Government of the Republic of India with Foreign Countries since the year 1950. The database is being updated regularly. As an International Law Advisory Division, the mandate of this Division is very wide beginning with questions relating to country’s frontiers, both land and maritime, utilization of its natural resources like the waters of an international river or the sea adjacent to its coast, protection of its citizens abroad, privileges and immunities of diplomats/international organizations, protection and treatment of aliens, granting of asylum, extradition of fugitive offenders, human rights, humanitarian law, disarmament, piracy and terrorism related issues. Legal issues relating to investment protection, international trade, matters relating to area transit agreements, shipping and other means of transportation also engage this Division.
The Law and Practice to treaty making:- Under international law, tee law and practices pertaining to treaties is governed by tee Vienna Convention on tee Law of Treaties, 1969. Although, India is not a Part to tee Convention, it follows its provisions in practice. The Convention codifies the law, practice including norms concerning tee international treat making. Tee Vienna Convention refers to ‘treaty’ in its generic sense and defines as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instrrments and weatever its particrlar designation”. The parties to a treat may agree for its entry into force either on the date of signature, or may make enter into force subject to ratification. In the former scenario, the treat will
become effective immediately on signing. Where, however, enter into force of a treat is subject to ratification, signing world only reflect the intent of the country concerned to be beyond to its provisions, and will have the binding effect only on ratification.
Novartis Ag Represented By It’s. vs Union Of India (Uoi), (2007) 4 MLJ 1153:- It was held that a treaty is primarily a compact between independent Nations, and depends for the enforcement of its provisions on the honor and the interest of the governments which are parties to it. See also. S.G.Fims Exchange Vs. Brinjath Singhji and Vaish Degree College Vs. Lakshmi Narain -AIR 1976 SC 888.
T.Rajkumar vs Union Of India:-
In this case (W.P.Nos.17241 to 17243 & 17407 to 17412 of 2015, Judgment dated: 12-4-2016), it was held that the law making power of the Parliament in relation to international Treaties, Agreements and Conventions can be traced to Entries 10, 12, 13 and 14 of List I of the 7th Schedule to The Constitution. Entry 10 relates to foreign affairs and all matters, which bring the Union into relation with any foreign country. Entry 12 deals with United Nations Organisation. Entry 13 relates to participation in international conferences, associations and other bodies and implementing of decisions made there at. Entry 14 relates to ‘entering into Treaties and Agreements with foreign countries and implementing of Treaties, Agreements and Conventions with foreign countries’.
Vishaka and Others Vs. State of Rajasthan and Others, (1997) 6 SCC 241:-
In this case, the Supreme Court has held that in the absence of a suitable legislation in any sphere, international convention and norms so far as they are consistent with constitutional spirit, can be relied upon.
Union Of India vs Vodafone Group Plc United Kingdom :-
In 2018, (in CS(OS) 383/2017 & I.A.No.9460/2017, dated 07-05-2018) the Delhi High Court held that even where India is not a party to an international treaty, rules of international law which are not contrary to domestic law are followed by the courts in this country. Further, where India is signatory and a statute is made pursuant to the said treaty, the statue would be given a “purposive” construction in favour of the treaty. Even if there is a difference between the language in the statute and the corresponding provision of the treaty, the statutory language should be construed in the same sense as in the treaty. This is for the reason that in such cases what is sought to be achieved by theinternational treaty is a uniform international code of law which is to be applied by the courts of all the signatory nations in a manner that leads to the same result in all the signatory nations.
Divya Pharmacy vs Union Of India And Others:- on 21 December, 2018, Uttarakhand High Court observed that in a recent judgment in the case of Commr. Of Customs v. G.M. Exports reported in (2016) 1 SCC 91, the Hon’ble Apex Court sums up this aspect in para 23 of its judgment, which reads as under:-
“23. A conspectus of the aforesaid authorities would lead to the following conclusions:
(1) Article 51(c) of the Constitution of India is a Directive Principle of State Policy which states that the State shall endeavour to foster respect for international law and treaty obligations. As a result, rules of international law which are not contrary to domestic law are followed by the courts in this country. This is a situation in which there is an international treaty to which India is not a signatory or general rules of international law are made applicable. It is in this situation that if there happens to be a conflict between domestic law and international law, domestic law will prevail.
To say in succinct, in process of a treaty making, (i) Drafting and Negotiation; (ii) Approvals; (iii) Full Powers; (iv) Ratifcation; (v) Accession; (vi) Credentials; (vii) Amendment of a Treaty; (viii). Review of Treaties are involved. the Ministry of External Affairs is overall in-charge of international treaty making activities. The administrative Ministry is the nodal agency for preparation of drafts, consultations and negotiations. Multilateral treaties are mostly negotiated in international conferences. In order to ensure that India is in a position to efficiently discharge all obligations emanating from the treaties/agreements, ratification/accession should be undertaken only after the relevant domestic laws have been amended, or the enabling legislation has been enacted in cases where there are no domestic laws on the subject. Therefore, proposal for entering into such treaties/agreements should specifically state that such ratification or accession will be made only after amending the relevant domestic laws, or enacting appropriate legislation. See. Cabinet Secretariat’s O.M. No. 1/13/2/2010-Cab., dated 23 August 2011 . It is also important to note that when an enactment infringes the fundamental rights and a challenge is made to that on that ground, the Hon’ble Supreme Court of India had said that it should not hesitate to grant a declaratory relief under Article 32 of the Constitution of India. Let me conclude this article with quote of Sonia Sotomayer who says, ” Even though Article IV of the Constitution says that treaties are the ‘supreme law of the land’, in most instances they’re not even law.”. Here, it is seminal to see afamous quote: ‘No nation has friends only interests’.