International Law — NCERT Solutions

Given / Concept: A conflict between an international treaty obligation and a domestic (municipal) law is a common issue in international law. The resolution of such a conflict depends on the approach adopted by the State — Monism or Dualism — and the specific constitutional provisions of the country.

Two Theoretical Approaches:

1. Monist Approach:

• International law and domestic law form a single, unified legal system.
• International law is automatically part of domestic law without the need for separate legislation.
• In case of conflict, international law generally prevails over domestic law.
• Countries like the Netherlands follow this approach.

2. Dualist Approach:

• International law and domestic law are two separate and distinct legal systems.
• A treaty does not automatically become part of domestic law; it must be incorporated through legislation.
• In case of conflict, domestic law prevails within the territory of that State, even if this puts the State in breach of its international obligations.
• India broadly follows the dualist approach.

Position in India:

• Under Article 253 of the Indian Constitution, Parliament has the power to make laws to implement international treaties, agreements, and conventions.
• A treaty ratified by India does not automatically become enforceable in Indian courts unless Parliament enacts a law to give effect to it.
• If there is a conflict between a treaty provision and an existing Indian law, the domestic law will prevail in Indian courts.
• However, Indian courts try to interpret domestic law in a manner consistent with India's international obligations wherever possible.
• Example: The Vishaka v. State of Rajasthan (1997) case, where the Supreme Court used CEDAW (an international convention) to fill gaps in domestic law on sexual harassment.

At the International Level:

• A State cannot use its domestic law as a justification for non-performance of its international treaty obligations (Article 27, Vienna Convention on the Law of Treaties).
• If a State violates a treaty because of a conflicting domestic law, it may face international responsibility — sanctions, referral to the ICJ, or diplomatic consequences.

Conclusion: In case of conflict, the outcome depends on the constitutional framework of the State. Domestically, domestic law usually prevails (especially in dualist States like India), but internationally, the State remains bound by its treaty obligations and may be held responsible for the breach.

Given / Concept: International disputes between States are resolved through various mechanisms. Unlike domestic law, there is no single compulsory court system; instead, multiple forums and methods exist, largely based on the consent of the parties.

Dispute Resolution Mechanisms in International Law:

1. Negotiation and Diplomacy

• The simplest and most common method.
• States resolve disputes directly through diplomatic channels — bilateral talks, exchange of notes, or summit meetings.
• No third party is involved.

2. Mediation and Good Offices

• A neutral third party (a State, an international organisation, or an individual) assists the disputing parties in reaching a settlement.
• The mediator actively proposes solutions; in good offices, the third party merely facilitates communication.
• Example: UN Secretary-General often provides good offices.

3. Conciliation

• A commission of conciliation examines the dispute and proposes a non-binding solution.
• The parties are free to accept or reject the proposal.

4. Arbitration

• Parties agree to submit their dispute to an arbitral tribunal, whose decision (award) is binding.
• The Permanent Court of Arbitration (PCA) at The Hague is a major arbitration forum.
• Many treaties include arbitration clauses.

5. The International Court of Justice (ICJ)

• The principal judicial organ of the United Nations (Article 92, UN Charter).
• Settles legal disputes between States (contentious jurisdiction) and gives advisory opinions to UN organs.
• Jurisdiction is based on consent — States must accept the court's jurisdiction (Article 36, ICJ Statute).
• Its decisions are binding on the parties to the case.

6. The International Criminal Court (ICC)

• Established under the Rome Statute (2002).
• Deals with criminal matters — genocide, war crimes, crimes against humanity, and the crime of aggression.
• Prosecutes individuals (not States) for the most serious international crimes.
• Has jurisdiction only if the accused is a national of a State party or the crime was committed on the territory of a State party, or the matter is referred by the UN Security Council.
• Its jurisdiction is more restricted than ordinary criminal courts.

7. Treaty-Based Dispute Resolution Mechanisms

• Many treaties create their own dispute resolution panels.
• Example: The General Agreement on Tariffs and Trade (GATT) / World Trade Organization (WTO) has a Dispute Settlement Body (DSB) with panels and an Appellate Body.
• The United Nations, in association with the World Bank, has created forums to deal with investment disputes (e.g., ICSID — International Centre for Settlement of Investment Disputes).

8. UN Security Council

• Under Chapter VI (Pacific Settlement of Disputes) and Chapter VII (Action with respect to threats to peace), the Security Council can recommend or impose measures to resolve disputes.
• Chapter VII resolutions are binding on all UN member States.

Conclusion: International law offers a wide range of dispute resolution mechanisms — from diplomatic negotiation to binding judicial decisions. The choice of mechanism depends on the nature of the dispute, the parties involved, and the treaties applicable. The ICJ's enabling provisions are wide enough to deal with most disputes between member States.

Given Facts:

• An international conference was held on an environmental issue.
• The Indian representative gave consent to the resolution subject to approval by the Indian Parliament.
• The Indian Parliament refused to give its assent.
• As a result, the terms of the resolution were not implemented in India.

Part (a): Identify the mode of entering into the treaty opted in the given condition.

Answer: The mode of entering into the treaty opted in the given condition is Ratification.

Explanation:

• Ratification is the formal process by which a State confirms and gives its final consent to be bound by a treaty that its representative has already signed or agreed to at an international conference.
• In this case, the Indian representative gave a conditional consent — i.e., consent subject to the approval of the Indian Parliament. This is the classic feature of ratification, where the signature or initial agreement at the conference level is not final; it must be subsequently approved by the competent domestic authority (here, the Parliament).
• Under Article 253 of the Indian Constitution, Parliament has the power to legislate for implementing international treaties. The executive (government) negotiates and signs treaties, but for them to have domestic legal force, parliamentary approval or legislation may be required.
• Since Parliament refused to give assent, the treaty was not ratified and therefore not binding on India.

Part (b): Analyze the situation when it would be binding on the Indian representative to give assent to the resolution.

Answer: The resolution would be binding on the Indian representative (and consequently on India) in the following situations:

1. If Parliament gives its assent: Had the Indian Parliament approved the resolution, the Indian representative would have been bound to implement its terms. Parliamentary approval would have completed the process of ratification, making the treaty binding on India under international law.

2. If the treaty is entered into by way of Executive Action (without requiring Parliamentary approval): Certain treaties or executive agreements that do not require changes in domestic law or financial commitments may be entered into by the executive alone. In such cases, the consent of the Indian representative at the conference itself would be binding, without needing Parliamentary approval.

3. If India is a party to a treaty that mandates acceptance of such resolutions: If India had previously ratified a parent treaty or convention that obligates member States to accept resolutions passed by the conference of parties (e.g., certain environmental conventions), then the resolution could be binding on India regardless of Parliamentary approval.

4. If the resolution reflects a rule of Customary International Law: If the environmental norm in the resolution has attained the status of customary international law (i.e., it is followed by States out of a sense of legal obligation — opinio juris), India would be bound by it even without ratification, since customary law binds all States.

Conclusion: In the given scenario, since the mode chosen was ratification and Parliament withheld its assent, India is not bound by the resolution domestically. However, India must be careful — if the resolution reflects binding international obligations, India could still face international responsibility for non-compliance.