International Law a Sand Dune to India?

Picture Courtesy: http://www.slayerment.com/files/slayerment/images/International-Law[1].jpg

This article was written by Aashrita Sachdeva, a student of Bharati Vidyapeeth Deemed University, Pune.

Introduction

We have been through a lot of instances where the application of international law has been questioned and also its existing validity in context to the Indian law has had many opponents.

Before proceeding to the area of application of International law in the Indian land we must very well know that the application of International law and its validity is mostly highlighted in the Constitution of  a country. For example we have countries like  France, United States , Germany and various other countries in the modern era that have laid down provisions which clarify the legal applicability of International Treaties in their Domestic Law.

Further we are going to study the application of International Law i.e. the International treaties , private international law rules and public international law rules, as in accordance with the Indian Constitution. The Indian Constitution has not been specific nor does it make the application of International Law binding on the nation.

The country is all set for globalization, promotes international relations and its necessity but does not want to approve the binding application of certain International Treaties. Ironical is it not?

The country does not like if their citizens face challenges or discrimination in the foreign land, but no binding!

The country hates it and goes all violent if their country men are thrown out of the foreign land, rage flows down the whole country be it about Indian students in Australia or the rigid laws of resident grant in Britain, but still no backing off in non acceptance.

International Law

We have noted in the previous section that Indian domestic laws does not make any binding provisions as to the implementation of International Treaties or any other Private International law rules, or for that matter any Public International law rules.

Let us go the to the aspect of understanding as to what is private and public international law.

Private International Law is that part of international law that is to administer the private citizens of two different countries or for the regulation, application of international rules of private citizens arising with a dispute at a foreign land.

On the other public international is differentiated from private international law as it is concerned with the set of rules agreed upon by the government of independent nations to determine the rights at an international front , i.e. trade , foreign policies , etc and regulate the happenings between the counties peacefully.

Thus for example if a dispute arises between a English man and a Portugal who came into a contract for the sale of goods and the cause of action lies in England, the dispute would be resolved either according to the English private international law rules of either country and in this case according to the private international law rule lex causae the dispute would be resolved according to the English private international law rules.

Therefore wherever a geographical factor comes into picture and questions as to the application of which domestic law private international law comes into picture. Private international law is a separate unit of law but until and until its rules have not been adapted by a country its implementation is not binding. Thereby to prevent the situation of chaos among individuals in a foreign land private international is developing widely.

There is a distinct feature between the International Law and Municipal law. The two are different from each other and there is a whole process which is followed to incorporate the international treaties into the domestic laws.

The methods of incorporation might differ from country to country but we must not forget that the private international law rules are the most important part of international law. The private international law rules are distinct from the municipal law and these rules are followed by countries by incorporating it in the municipal law in some or the other form. Like initially England had incorporated its private international law rules in the domestic law itself.

International Law and Indian Judiciary

[1]In  India, rules relating to Jurisdiction in action inter parties are laid down in sections 19, 20 of the code of Civil Procedure, 1908.

Section 19 is confined to suit for compensation for wrongs to person or movables.
That section reads as:
Suits for compensation for wrongs to person or movable Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

The above mentioned section 19 of the Civil Procedure Code in its ambit covers only torts which are committed in India and defendants residing in India and no foreign torts.. Such cases are covered by section 20, which overlaps this section. This section deals with inter partes suits.

section  20 of the Civil Procedure Code reads as follow:
Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction
(a) The defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) Any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) The cause of action, wholly or in part, arises.
The explanation to this section says that a corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Thus, it is submitted that Indian Courts should not be  construing  strictly to the  requirements  of residence in private international law cases, nor should it be exercising  jurisdiction over persons on whom process has not been  served just because cause of action arises within jurisdiction. The Indian rules of Private International Law are identical to the rules of English Private International Law. Moreover to my understanding because most of the laws have been developed by the British in the pre independence times and India has been following the same. The Civil Procedure code itself dates back to the pre independence period developed by the British regimes.

 Submission to the Court  Under  English  Law:

 A person may submit to the jurisdiction of the Court either under an express agreement or by conduct. If a person to the court submits to the jurisdiction then the court gets the jurisdiction to try the action and a decree or an order is passed in such action will be valid internationally. The submission to jurisdiction cannot bring those cases within the jurisdiction, which are otherwise outside the jurisdiction. A person may submit to the court either by his/her conduct (conduct which is voluntary) or by a contract (by way of express stipulation in the contract).

the Indian law of submission as discussed in the above mentioned paragraph closely follows  the English Law. If a person is outside the jurisdiction, the court will have the jurisdiction upon  him only if he submits to the jurisdiction of the court. In case, the foreign defendant does not submit to the jurisdiction of the court, then the judgment delivered in his absence would be null and void. It is to be noticed that mere presence of the defendant in the court of law is marked as submission to the court.

As we have noted above that private international law deals with disputes between private citizens on a foreign land or dispute which has some or the other foreign element present in the dispute which puts a question mark upon the jurisdiction of the court.

Therefore, it is important for us to note that the private international law rules main concern is whether the proposed court has jurisdiction or not and also secondly to determine the jurisdiction of a court to adjudicate upon the matter there have been developed private international law rules by firstly determining which state court has jurisdiction.

[2]Choice of law rules :

1. the court will apply the law of the forum (lex fori) to all procedural matters (including, self-evidently, the choice of law rules); and
   2. it counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g. the law of nationality (lex patriae) or domicile (lex domicilii) will define legal status and capacity, the law of the state in which land is situated (lex situs) will be applied to determine all questions of title, the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper law has become a more common choice.

   For example, suppose that A who has a French nationality and residence in Germany, corresponds with B who has American nationality, domicile in Arizona, and residence in Austria, over the internet. They agree the joint purchase of land in Switzerland, currently owned by C who is a Swiss national, but they never physically meet, executing initial contract documents by using fax machines, followed by a postal exchange of hard copies. A pays his share of the deposit but, before the transaction is completed, B admits that although he has capacity to buy land under his lex domicilii and the law of his residence, he is too young to own land under Swiss law. The rules to determine which courts would have jurisdiction and which laws would be applied to each aspect of the case are defined in each state’s laws so, in theory, no matter which court in which country actually accepts the case, the outcome will be the same (albeit that the measure of damages might differ from country to country which is why forum shopping is such a problem). In reality, however, moves to harmonise the conflictual system have not reached the point where standardization of outcome can be guaranteed. The status of foreign law.

   Generally, when the court is to apply a foreign law, it must be proved by foreign law experts. It cannot merely be pleaded, as the court has no expertise in the laws of foreign countries nor in how they might be applied in a foreign court. Such foreign law may be considered no more than evidence, rather than law because of the issue of sovereignty. If the local court is actually giving extraterritorial effect to a foreign law, it is less than sovereign and so acting in a way that is potentially unconstitutional.

Thereby in Indian courts also a similar phenomenon is followed. The court applies a foreign law on it being proven by foreign law experts to protect the sovereignty of the nation and the judgement which is being given is not against the given provisions of the Indian Constitution.

Choice of Law
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the
differences between the laws of different states, and in the United States between individual federated states. The outcome of this process is potentially to require the courts of one jurisdiction to apply the law of a different jurisdiction in lawsuits arising from, say, family law, tort or contract.
1. Jurisdiction. The court selected by the plaintiff must decide both whether it has the jurisdiction to hear the case and, if it has, whether it is the most convenient forum (the forum non conveniens issue relates to the problem of forum shopping) for the disposition of the case. Naturally, a plaintiff with appropriate knowledge and finance will always commence proceedings in the court most likely to give a favourable outcome. This is called forum shopping and whether a court will accept such cases is always determined by the local law.

2. Characterization. The court then allocates each aspect of the case as pleaded to its appropriate legal classification. Each such classification has it own choice of law rules but distinguishing between procedural and substantive rules requires care.

3. The court then applies the relevant choice of law rules. It should be noted that in a few cases, usually involving Family Law, an incidental question can arise which will complicate this process.

The rules of private international law which are explained herein below are incidental to law and do not decide the law. In other words these are connecting rules which help the courts to decide which law law should be applied when a party is a foreign party.

Lex Domiclii

The lex domicilii is the Latin term for “law of the domicile” in the Conflict of Laws. Conflict is the branch of public law regulating all lawsuits involving a “foreign” law element where a difference in result will occur depending on which laws are applied.
When a case comes before a court and all the main features of the case are local, the court will apply the lex fori, the prevailing municipal law, to decide the case.

The  lex domicilii is a common law choice of law rule applied to cases testing the status and capacity of the parties to the case. The civil law states use a test of either lex patriae (the law of nationality) or the law of habitual residence to determine status and capacity.

Since India closely follows the English Private International law rules , its choice of law rule is bended towards lex domicili just like the English courts.

Lex Loci Contractus

The lex loci contractus is the Latin term for “law of the place where the contract is made” in the Conflict of Laws. Conflict is the branch of public law regulating all lawsuits involving a “foreign” law element where a difference in result will occur depending on which laws are applied. When a case comes before a court and all the main features of the case are local, the court will apply the lex fori, the prevailing municipal law, to decide the case. The lex loci contractus is one of the possible choice of law rules applied to cases testing the validity of a contract. For ex, suppose that a person domiciled in Canada and a person habitually resident in France, make a contract by e-mail. They agree to meet in New York State to record a CD of hip hop music.

Lex Fori

In Conflict of Laws, the Latin term lex fori literally means the “law of the forum” and it is distinguished from the lex causae which is the law the forum actually applies to resolve the particular case. Sovereignty comes into being through a process of recognition by the international community in which a de facto state is formally accepted as a de jure state and so becomes the legitimate government with territorial control over a defined area of land and all the people who reside within its borders. One of the most important sovereign powers of any government is to enact laws and to define the extent of their application.

The Code of Civil Procedure in India  provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties pr between parties under whom they or any of them claim litigating under the same title except –
a) Where it has not been pronounced by court of competent jurisdiction;
b) Where it has not been given on the merits of the case;
c) Where it appears on the face of the proceeding to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
d) Where the proceeding in which the judgment was obtained or opposed to natural justice;
e) Where it has been obtained by fraud;
f) Where it sustains a claim founded on a breach of any law in force in India.

International Law and Indian Constitution

[3]The basic provisions of the Constitution of India relevant for consideration of its interaction and inter-relationship with International Law are;

  (1) Article 51

     (2) Article 73

(3) Article 245 & 246

 (4) Article 253

(5) Article 260

 (6) Article 363

  (7) Article 372 and

 (8) VII schedule – entries 10 to 21.

Article 51 Promotion of International Peace and Security; The state shall endeavour to –

1. a)         promote international peace and security
2. b)         maintain just and honourable relations between nations
3. c)         foster respect for International Law and Treaty obligations in the dealings of organized people with one another; and
4. d) encourage settlement of International dispute by arbitration.

For the purpose of this study, the central point for discussion is Article 51(c).     Article 51 of the Constitution had its source and inspiration in the Havana Declaration of 30 November 1939.  The first draft (draft Article 40) provided:

“The state shall promote international peace and security by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of International Law as the actual rule of conduct among governments and by the maintenance of justice and scrupulous respect for treaty obligations in the dealings of organized people with one another”.

With the acceptance of amendments moved by Dr. Ambedkar, H.V. Kamath, Ananthasayanam Ayyangar and P. Subbarayan, draft Art. 40 was adopted by the Constitutent Assembly in its present form as Article 51.  During the debate, all the speakers emphasized commitment of India to promoting International Peace and Security and adherence to principles of International Law and Treaty obligations.

It is significant to note that the clause ‘c’ of Art. 51 specifically mentions ‘International Law’ and ‘Treaty Obligations’ separately.  According to Prof. C. H. Alexandrowicz the expression ‘International Law’, in the said paragraph      connotes Customary International Law and ‘Treaty Obligations’ stands for obligations arising out of International Treaties.  This interpretation seems to be logical in the context of the text of the Draft Article 40 referred above as well as the attitudes of courts in India on questions of International Law. It is also significant to note that Art. 51 (c) treats both International Customary Law and Treaty Obligations on the same footings.

Judicial interpretation of Article 51(c).

Article 51 has been relied upon by Courts to hold that various International Covenants, Treaties etc., particularly those to which India is a party or signatory, become part of Domestic Law in so far as there is no conflict between the two.

[4]In Keshavanand Bharati v State of Kerala, Chief Justice Sikri observed;

“In view of Article 51 of the constitution this court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of United Nations Charter and the solemn declaration subscribed to by India”

It is significant to note here that Article 51 finds place in Chapter IV of the Constitution  which provides for Directive Principles of State Policy (DPSP) and are non – justiciable by virtue of Article 37.  Even though as one of the DPSP, Art. 51 is not enforceable through a court of law, Dr. Ambedkar had said in the Constituent Assembly that the intention was that the executive and legislature should not only pay lip service to these directive principles but “they should be made the basis of all executive and legislative action that may be taken hereafter in the matter of governance of the country”.

Conclusion:

Through all the above provisions that we have seen of the constitutional law regarding the implementation of the international treaties or the foreign judgements. Similarly the implementation of choice of law rules in context to implementation of the private international law rules I have personally drawn a conclusion that the acceptance of international treaties as law making sources is very rigid and yet to develop and as far as the development pf private international law rules is considered in India what the Indian courts mostly do is transfer the jurisdiction of adjudication of such cases willing to the other country due to lack of expert witnesses in regard to foreign law.

I believe that in India there is adamant need for the development of private international law and not only in India but worldwide as due the increasing globalization and increasing number of migrants in different parts of the world, we need to have a binding set of rules of private international law to protect the interests of people all over the world. The idea that the people have with regard to private international law specifically in India is that it is a vague unit of law which is not binding and want to simply abide by the domestic laws in protection of interests of such cases. But this cannot be the case all over, it is really important to understand the need of the hour for the development and protection of the dynamic nature of law.

[1] http://www.legalserviceindia.com/articles/frpca.htm

[2] P.243, Cheshire’s private international law, Indian edition

[3] http://www.legalindia.com/the-status-of-international-law-under-the-constitution-of-india/

[4] M.P. Jain’s Constitution Of India 12^th edition