 who is also the Dean of the CMR University School of Legal Studies, Bangalore, and amongst us we have for the first time Professor Dr. Venkatesh Laiya Ji Haigari, the Chairman and Professor Center for International Legal Studies School of JNU New Delhi. And once, though in a lighter way, once you are sandwiched between two persons who are so knowledgeable, you always feel that though they say the best of the part of the sandwich is in the center. But once you are sandwiched between two knowledgeable persons, it's very difficult to actually match up with their knowledge. And that too for a topic as to how the international law is being used in the Indian courts is a topic which is quite dear to their hearts and to all the students because we all talk of the national judicial systems as they have been changing. But to understand the interplay between the two laws would always be fascinating. And without taking much time, since we all know that the courts and the studies have gone back to normalcy. But it's always a pleasure hearing from the persons who are quite resourceful, not only knowledge, but the way they take the things forward. I request Dr. Tia Subramaniam to say a few words about Mr. Haigari because he has brought him on this platform. And we are enamored by the fact that both of them have a CD2R request. Thank you very much. Professor Vindrachal Haigari has completed his education in Bangalore. He was a product of the Saint Joseph's College. And afterwards he did his LLM from the University of Mysore and went on to do his Infill and PhD in international law from the School of International Studies, Jawaharlal University. And afterwards he has served in different places, including the Asian-African Legal Consultative Committee and even other bodies. Now, later he became an assistant professor, associate professor and he worked even in the Sark University as well. From there, again, he came as a professor to his alma mater. This is the brief introduction, Professor Vindrachal Haigari. He has written several articles, went to several universities, served as a professor and in a distinguished position in a few foreign universities, including Switzerland, etc., etc. This is in a nutshell about the career of Professor Vindrachal Haigari. Yeah. Professor Haigari, in the first 20 or 20, 20, 25 minutes, I shall just give an introduction to the topic. There afterwards you can just bring in the application of international law by the Indian courts. Sure, sure. Yeah. I want to take up the topic, especially international, the relationship between international law and municipal law. Most of the students of international law consider as a tough subject and they consider it as an iron tablet, very difficult to digest. But then, to a certain extent, it may be true. But as students of international law, we are supposed to know every topic which comes under the syllabus of the principles of public international law. When we take up this matter, there are instances wherein several cases relating to international law or international rules come before the domestic courts. And when these cases come before the domestic courts, the main problem with the domestic courts, that is, before the courts in India or the courts in the United States or the courts in the state of UK or any other court for that matter, how far respect should be given to these rules of international law by the domestic courts. Now, they may give respect to the rules of international law if the concerned alleged rule, which is being cited and quoted, if it is in accordance with the domestic law. Now, there are instances wherein the alleged rule of a rule of international law, when it comes for an application, it naturally contradicts or evaluates the domestic law. The basic question is, in circumstances such as this, should the local court give, endorse the rule and accept it and enforce it is the first question. Now, there may be other instances as well. Now, when I speak about other instances, for example, you take an instance and instance relating to an international court or before an international court of arbitration or before the Paris Chamber of Commons or before other courts as well at the international level. Now, before these courts, a municipal law, a law which is being enacted within the domestic jurisdiction of the state coming into question, when naturally it comes to the question whether the international courts are bound to apply these rules of international law. There are instances, there are instances, plenty of instances before the court of arbitration and the court of arbitration has gone that far in saying, we will not respect the rule of the law that is enacted by the domestic state unless and until it is in conformity with a rule of international law. Now, that is where, remember, the primacy of international law lies. So, the domestic laws are always should be in conformity with international law. But here and there, there are questions when they came up, they have upheld and they have recognized the rule of domestic law as it is prominent. Now, you may ask me why this question comes up because under article 38 paragraph 3 of the Statute of the World Court, 1, 2, 3, ABC. The International Court of Justice has recognized as a source of international law which is called the General Principles of Law, recognized by civilized stations. The General Principle of International Law, recognized by civilized stations is a general principle which is common in almost all the legal system. A rule that is common and commonly applied has to be recognized even by the International Court of Justice wherein some of the states have succeeded even before the International Court of Justice. Now, remember this much, especially when a state court interprets the provisions of international treaty, the treaty may be bilateral or may be trilateral or may be multilateral. When it interprets the provisions of treaty naturally, now that court should be cautious, extra cautious in knowing the rules. That is why the concerned person who argues the case before an International Court of Justice should know the niceties, the nitty-gritty issues between the relationship of international law and the municipal law. Scholars when they speak about the relationship between international law and municipal law just try to find out, remember or analyze the theories relating to this. Now when I speak about the theories, the theories are basically two. Now one is called as the dualist theory and the other one is the monastic theory. Now the dualist theory naturally proposed by two great scholars, one is Tripel and the other one is Angelotti. Now what did Tripel find out? Now the dualists find out both international law and municipal law are separate jurisdictions and they are separate branches, they have a separate identity of their own and when they discuss this matter they go to the extent of pointing out on three important issues. First one is they speak about the sources of national law and the sources of international law. Then they speak about the subject of national law, then they speak about the subject of international law. Thereafter they speak about the substance of national law and the substance of international law. I shall just clarify the point further. When they speak about the sources of international law you might be knowing under the present day international law and article 38 of the International Court of Justice there are four sources, treaties are the supreme source of law. Now thereafter secondary position is given to custom, treaties, customs and the third one general principle of law recognized by civilizations. Then juristic writings and decisions of international courts may be treated as a secondary source of international law as by way of an evidence. Now these are the sources of international law on record whereas when you go to the source of national law you might be knowing the first source is the constitution of that state and along with the constitution judicial decisions of that state which remember gives wonderful jurisprudence to know what exactly and what ought not to be the law and what should be the law. Now along with the judicial decisions you had some other sources which are called as the laws which are enacted by the concerned state. These laws which are enacted by the concerned state also constitute a source of law which are referred to and that of course implementing provisions. There are several implementing provisions which are being adopted and they also constitute a source of national law. Now in addition to this the most important thing is in every state there will be customs and these customs are to be obeyed and these customs are to be respected. For example, when we speak about family law we speak about the customs although remember enormous changes have been brought to the family law these days but then when we speak about the issues relating to customary law naturally the family law is governed by it which is a north fact. Now thereafter the second source happened to be the subjects of international law. Now we go to the extent of finding out the first one is the subjects of international law are states and states only solely exclusively. Now international law is speaking about the subjects of international law. Now simultaneously you have the subjects of state law. Now the subject of state law are the remember the sovereign will of the people and it is the collective will of the people the individuals who naturally constitute remember the important subjects of national law. Now there are towards one what we call the substance. Now when I speak about the substance international law is a law which is enforced through the agencies of the state. Now when we speak about it a great writer from the University of Cambridge who the editor of the British yearbook of international law points out remember most of the rules of international law are intergovernmental means through which they are enforced. Simultaneously the state is competent to have a legislation. When it is competent to have a legislation the legislation enacted by it is enforced by it. So one naturally remember speaks about the common will of the people and the other one state is the wills of the people of that state. Now there are certain differences regarding the state we have seen earlier or you have as students of international law you must have studied. When we speak of international law today not only the states but individuals are also considered as the subjects of international law. Now you take the instance and instance relating to the reparation case which was decided by the International Court of Justice in the year 1949. In 1949 the International Court of Justice pointed out even the international servants are subjects of international law. United Nations has a personality of its own. It can sood as well as it can sood before a court that was the expression that was pointed out. Now in the year 1950, 1966 and 1971 a beautiful case came up before the International Court of Justice thrice and in this case for the first time International Court of Justice pointed out the office of trust is has its origin in the municipal law and since it is its origin is municipal law that can be applied as a principle of international law even at the international level. South Africa was appointed as a trustee to look after the territory of Namibia. A trustee under the system of United Nations which was appointed under the trust issue council under a chapter two another chapter when it's abused the privileges that is being given to it the matter goes to the International Court of Justice. They said remember sovereignity reside with the people of the trust and the Namibians the individuals of Namibia are sovereign and they can be enforced that is what the interpretation was given. Now there are several other cases for example the effect of awards is administrative tribunal the International Court of Justice pointed out even United Nations employees are subjects of international law for the second time and a decision which is being given by the administrative tribunal of the United Nations which is appointed only to look into the validity of the contract of service and for its enforcement remember when it gives a judgment it will act as a resjudicator that is what what was pointed out by the International Court of Justice. Now these are certain things but then now we go to discuss monism. Now when we discuss monism, monism always the monistic scholars remember especially Hans Kelsen he is the proponent of this theory he points out all laws ultimately govern individuals and some of them are called international law some of them are called national law. Now individual is the entity of all laws from where he begins in is what we call as pure theory of law. Now he actually believes in remember one important conditioning the rule when I speak about conditioning the rule it is simply means one rule is conditioned by another I shall just speak to you given an example now for example you take a municipality how does the municipality work the municipality naturally work because of the legislations which are given to it the question that comes in who authorized the municipality to enact the legislation so in this country you say it is the state government even for the for that matter even for the corporation into the state government with young powers as a student of law naturally a question will come who authorized the state government then you say the parliament has delegated certain powers in the ordinary course of nature since it is not in a position to carry out its obligations certain powers are delegated to municipalities corporations and even other subsidiary bodies naturally a question will come who authorized the parliament to delegate these powers then you say naturally you say it is the constitution the constitution has permitted to delegate these powers now another question that leads to who authorized the constitution it is where remember the question comes in certain writers go to the extent of pointing out it is international constitutional law and when it goes to the top and skelson pointed out his theory is a pure theory and there is no no consideration for metas physical factors meta legal factors like morals, philosophy, ethics all these things will come but then when it goes beyond the constitution of that state remember naturally moral principles ethical principles in law come into question and they are very much required now you take take an illustration linked to the protection of the rights of women take the protection of the rights of the child now many other legislations in all these legislations remember moral factors equality of treatment they should also be treated like men and they also be they are also entitled to privileges and immunities this was what was pointed out in that now when we go further there are certain scholars who applied the dualist theory as well as the monastic theory because of monastic theory remember since it is single in nature it is more confusing where is the dualist theory remember is more clear and less confusing is the point which is being given by most of the writers in the area of international law now there afterwards I just intend to bring in only two or three points there was a theory which is known as the theory of specific adoption when I speak about the theory of specific adoption remember between 1723 to 1783 there appeared a great scholar and he was supposed to be one of the greatest commentators in English law and he go to the goes to the extent of pointing out certain rules of international law are naturally adopted into the municipal machinery for the concerned state and thereby they apply rules of international law this is generally called as the theory of specific adoption rules of international law are specifically adopted in the municipal constitution of a particular state when it is constituted into the domestic sphere naturally now it has to be respected and it has to be adopted by the concerned space now the other writer happened to be the theory of transformation now the theory of transformation is very simple there is no confusion this at all now what the writers go to the extent of pointing out is most of the international treaties are in the nature of promises and these promises which are in international treaties are to be transformed into commands now the law law enacted by the state are in the nature of a command if it is not obeyed if it is remember disrespected naturally there will be punishment so what they say is international law majority of them are in the nature of promises these promises are to be transformed into the nature of commands this is what they go to the extent of saying but but then this theory is also being crystallized one is remember no more a promise than an understanding that is the reason that is being delivered now there is one more theory which is called the theory of delegation and when we speak about the theory of delegation certain rules of international constitutional law are delegated into the municipal machinery of the concerned state and when one city is delegated into the municipal machinery of the concerned state it is being observed without any difficulty now there afterwards I just give you the practice of the state of Great Britain very very briefly now when I speak about the statutes at least the state of Great Britain they go to the extent of finding out customary rules of international law are part of the law of the land provided it is not inconsistent with the British statute so all customary rules of international law are to be respected because it is part of the law of the land provided it is not inconsistent with a British statute but the second opinion that is the second matter that is has to be followed is when once the scope of a rule is decided by a competent court that rule will be binding on all other courts as well as the administration suppose for example once the scope of a rule is determined should it be respected or not respected or it should be suspended and a decision of that court is binding on all remember inferior courts as well as the administration of the state of Great Britain now this is the president now one beautiful case came up and this case came I happened to be R versus K now remember the theory of specific adoption came in through Blackstone one of the greatest commentators of the state of Great Britain now the rules of international law are specifically adopted into the constitutional machinery of the state if rules of international law were to be adopted into the constitutional machinery of the state please listen to what has happened in this case R versus Franconia remember Franconia happened to be a German vessel and it was navigating in the German in the English territorial waters within the three mile limit and it was commanded by Mr. Cain and when the German vessel Franconia was navigating in the British territorial waters it collided with a British vessel and there was murder and misdemeanor that was perpetrated the British naval guards go to the spot arrest Mr. Cain and afterwards he was brought before the court for crime cases and they find out under the custom rule of international law under the doctrine of what to be specific adoption the British courts or Her Majesty's empowered exercise jurisdiction for all crimes which are perpetrated within the three mile limit there were as many as 11 judges before the court for crime cases they heard the case having heard the case somebody said a few of them there were three groups of the 11 and of the three groups remember first group said now we we ought to exercise jurisdiction this is what one group said the second group said remember we cannot exercise jurisdiction unless there is an enabling statute unless a lot of this effect clearly says that you are empowered to exercise jurisdiction for the crimes that are perpetrated within the three mile limit the British courts cannot exercise jurisdiction now the third group remember they were just wanted to save themselves under the existing rules we cannot exercise jurisdiction they did not say further under the existing rules we cannot beside this case as a result a murderer who committed murder in the British territorial waters within the three mile limit was acquitted see if customary rule of international law were to be part of the law of the land great Britain they should have exercised the jurisdiction but they did not they said enabling statutes very much essential hence came what we call as the maritime territorial jurisdiction act of 1878 enacted by the British parliament but then there was a partial return to this doctrine in another case this is a west rand gold mining company versus r west rand gold mining company versus r happened to be a company which was registered in england but functioning in transform in south africa the company which was registered in england when it was functioning in the state of south africa one day what has happened was two parcels of gold belonging to the company where ceased by the south african republic employees the de then law of south africa pointed out it is the duty of the finder to restore the goods to its proper owner tragically on the same year in the month of october 11th south africa was conquered by the state of great Britain and it annexed it and south africa was nowhere in the picture and the state of great Britain annexed the territory of south africa and the company filed a suit in england because it was registered in england it filed a suit to claim parcels of gold the law clearly indicated whoever finds the goods the finder should restore the goods to the proper owner the matter goes to the court of appeal and the court of appeal points are pointed out in cases of succession by conquest it is left to the discretion of the successor state or the conqueror whether to take up the obligations or not in all cases of state succession it is left to the discretion of the successor you can't just put in liability and if they decide to give this find you can't force and compel the conqueror is so powerful and with the result the claim of remember the company failed now what has happened to us the existing custom the existing practice in case of conquest naturally now indicated it is left to the discretion of the successor state and the claim of the company failed now this is relating to what we call as the customary rules regard to the treaties none of the treaties are the are to be respected generally signing of the treaties is done by the ministry of fiscal affairs foreign office and it has to be respected but then there are certain treaties which require approval of the crown now these are these treaties which naturally require the approval of the common the first one is a treaty which intends to impose additional financial obligations of the crown then it requires naturally approval of the crown a treaty which clearly indicates this will not come into force unless the approval is taken from the crown such treaties require treaties which alter the private subject private rights of the British subjects any treaty which alters the private rights of the British subjects has to be approved by the crown before that it will not come into force treaties relating to the seeding of the territory seeding of the British territory naturally it has to follow by the approval of the crown before an action is initiated now these are a few things I just spoke to you something relating to the British status I don't intend to dwell on the American practice now I request Professor Hegre to take up the matter and continue with the Indian practice Hegre sir you will have to unmute thank you very much and good afternoon let me first of all thank Mr. Vikas Chathart for you know hosting me in this webinar on the application of international law in Indian ports and also wish to thank Professor Subramanya who is my of course I I need to introduce him because he introduced me so I think it's in fitness of things he is my senior and you know he also completed his PhD under a very very illustrious Professor Amitola Khan from the my own center at the Center for International Legal Studies on Hazardous Ways which recently has published a route ledge he published the book and he also advised Bahrain for nearly six seven years I think as legal advisor and taught international for 40 years and also at he was former Vice Chancellor of the Karnataka State Law University so he has a long years of academic and practical practice I'm sure in the last 15-20-25 minutes what he spoke I'm sure he he has given us sort of idea of what actually you know his international law and municipal law interface and he also made my job easy because he already referred to some of the basic theoretical frameworks conceptual frameworks now let me go into the Indian context without wasting any time now the the first point is today we are talking about how Indian courts are looking at the application of international law this has been a topic which of course is interested me for last 15-20 years and then I've been working on it so particularly you know looking at our courts how our courts are actually trying to negotiate application of international law so now the the first point I just want to mention is let us first understand you know the the definition of international law from which Suburbania spoke about international law in a more traditional context but today I think international law has actually developed into an area where when we define international law we always say that any foreign element which exists in any case actually could constitute international law because it could be private international law it could be public international law it could be you know a contract where you might want to actually want to explain certain elements which which are very important in the context of you know so all this has actually become part of international international definition has actually changed in the last 30-40 years what we knew as traditional international law is really is there but of course one need to understand that but at the same time the the because why I'm saying this is particularly courts which on which I have written the courts we think that generally we think that it's high courts and supreme courts are the ones in India which deal with international law which is true the supreme court in several cases which I will mention to you now so has actually dealt with it and as to negotiate you know there are number of confusions number of problems number of sort of you know judges are also not clear but still they wanted to use international law so at some way you know as a supplementary means of interpretation so which they did I think up to a point extremely well so but what we need to know is in the Indian context particularly for the courts Indian courts international law is an exotic element actually but if you look at the basic level I said even district courts sessions courts and smaller courts also had to negotiate international law in the way I defined it actually for example you ask me what are these areas where the smaller courts you know district courts etc we'll have to deal with it for example you know if there are cases relating to a foreigner who has been arrested because he had some contraband or something like that or some other accident which takes place on the way he has been actually arrested and then you know issue of how to treat him what kind of rights he has who has to come from the embassy you know you have to you have a you have a you when you actually take somebody into custody under the under the you know councillor conventions you have an obligation in article 36 to inform the concerned embassy so moment you all that comes in that becomes part of international law so I'm sure all the time smaller courts all over India will be dealing with this issue all the time knowingly or unknowingly in the NICOL XC case I'm sure I don't have to mention this has happened in several locations there were of course mistakes were committed in many ways in applying them but somehow it gets corrected over the period of time but at the same time like for example maintenance issues you know when two two these spouses are staying in different countries and then there is a diverse proceeding that you need to you know when there are multiple cases which are filed in other jurisdictions then you need to deal with it service of someone's how to serve it serve it all these if you look at even simple civil procedure court section 13 section 80 and then section 86 which is about the how to sue a government for example can you sue a embassy can you sue a embassy which doesn't pay or doesn't pay the contractual obligations which actually takes you know within India all these are there are cases of course within all this form part of international so because the embassy of course is has got immunity and then immunity in certain cases are not granted in case of course there are provisions under the Vienna Convention on diplomatic relations when an embassy cannot be held you know cannot be held or can be held both are you know the status of immunity is very very different so in other words there are number of ways for example I can I have a list which I have made I mean in my writings I have made but I will not get into it where the for example intellectual property rights violations a multinational company you know in the context of internet etc the issues of jurisdiction you know wherever you have to file a civil suit at the district court you know against the company you have international elements there you need to deal with it so in other words the the definition of dealing with the Supreme Court and high courts have actually recognized this as well in India so in the last 20 30 years this particular idea of international law means this one this is what it is it's actually changed it has changed in UK it has changed in United States quite a bit and then in United States and Canada at least you have a sovereign immunity act so obviously under the law they actually deal with these issues in India we don't have a law in India it is the section 86 of the CPC civil procedure court actually deals with these issues so so this is the sort of a very broadly talking about and we are in the era of globalization so globalization requires now the entire idea of jurisdiction the entire idea of people you know service oriented economy you know if you look at it that way the World Trade Organization agreements particularly the agreement on services actually defines services very differently and accordingly you need to actually look at the look at look at how to deal with these issues so it has been pretty complicated so the earlier sort of you know which I'm sure if you if you look at it that way the Indian Supreme Court actually in the 1984 gramophone company case which is a very peculiar a trade case about trade and transit case which happened between Nepal and India where you know while discussing this case Supreme Court of India referred to a DC an government made by Lord Denning in 1977 in a case called Trendex Corporation Limited again this is a case where Lord Denning of course you know who is one of the greatest minds in law Lord Denning you know and and of course as Provost Subramanya has put it very very very well about the the British practice being so conservative but Lord Denning came out with a statement seeing Trendex this was in 1977 he said you know of course we need a domestic law in order to implement international law agreed but at the same time it is not you know it is not just easy or proper for us to wait for a domestic law because things are changing so fast he said it in 1977 I'm putting it in my own words saying that international is developing so fast things are technology is developing fast we need legal frameworks very fast and international is providing that so we need to actually in case if there is an international legal principle which is capable of providing us answers we should actually adhere to it in case if it is correct so in that's what exactly he said in 77 in the Trendex case in UK and he applied you know saying that you know international law is so amorphous so and which is so required so we need to apply you know without waiting for a what is called as you know in the already mentioned again by professor Subramanya is a transformation theory see now there are transformation theory and incorporation here I'm sure all of you know I think these are things two things which we actually should look at it and quickly and finish it up transformation is essentially both international and national you know Indian territorial law or domestic law as we call it or municipal law as we call it in international patterns they operate in two different spheres of course India I'm sure all of us know territorially all of our laws apply within our territory international law applies at a different level so international law is as its own areas of work where of course international organizations international treaties international you know conventions all this of course belong to you know now what is happening in Ukraine and Russia what is happening in security council what is not happening all this is part of of course international is quoted all the time we agree with that whether it's correct or not whether it is you know things are happening properly or not but still international law is international law and it is of course very effective in a sense there is always this you know argument saying that international law is not effective and of course we refer to a command I agree with the command but international is a different kind of a command it has it has come out of this austinian way of looking at it almost 50 years ago now nobody thinks about international it is about as you know edith brown wiss very well mentioned in the international environmental I'm sure Francis Subramanian knows it very well he he talked about compliance actually international law talks about compliance you need to comply otherwise there are consequences when domestic law in case if I violated traffic signal I know there are consequences there is a command there is a law I agree there are two different things but they look at it very differently so international looks at it compliance so in in in this context compliance comes here because there is this concept of sovereignty because states the international works within the sovereign space of states so that becomes a big problem defining sovereignty sovereign equality of states and they can do anything they do need not of course russia did not appear before the icj in the provisional measures not russia is not the first country to do it americans have done it in nikola India did it in prisoners of war case in 71 so china did it in its recent south china c case they have not appeared they said we do not we don't agree we are not going to appear but they will take all measures to do whatever they want to do so this is very common so because it's sovereign sovereignty is something which is not there in the domestic law sovereign is sovereign there you know constitution is a sovereign so constitution whatever says and all the laws as calisthenics he mentioned comes from there which is a grand norm is a different issue we will not get into that so transformation theory requires because of this two different categories of you know legal spaces international law and domestic law legal spaces when international has to come to domestic law it needs to transform into a domestic law in order for implementation simple actually the courts in india or anywhere in the world will say if you go to supreme court or the high court you can't tell the high court or supreme court or even to the municipal court sir this is there you know i'm sure i can see many of my students and colleagues who are here they understand it better if you go to a court and tell the court you know i'm i'm such and such a rule of wdo you know regulations or etc violated the court will say i'm nothing to do with wdo or anything you tell me which law and in my you know state is violated is constitution violated is any regulatory framework violated is any law violated that's what court will ask this is what exactly happened in the nawrati scale in 2013 when the nawrati's case when the nawrati's went to orcuse saying that is violation of trips agreement the madras high court very clearly said we are nothing to do with trips agreement tell us which section 3d is okay or not within the indian patent act section 3d is okay if it is not okay you argue within those parameters indian patent act so we are concerned with it but in the context of argue you can bring in trips etc that's a supplementary interpretation is always possible so this is where exactly transformation theory requires that you need to bring in a legislation so now where is the framework actually comes in you know you know majority of the states actually provide some kind of a legislative framework in order to implement or bring in transformation into domestic law but in india we don't have in india it's a constitution itself provides for it now let me spend two three minutes about how what is how india actually brings in international into domestic law now india in india of course is in you know if you look at it that way it is the executive which actually enters into treaties as provisional also mentioned executive has the prerogative to enter into treaties under article 73 and entry of course entry 14 of the article 246 where union list where it is the prerogative of the central government to conclude treaties and enter into formulations all kinds of things are there so there are number of 246 provides for union state and concurrently I'm sure all of you know which is part of seven schedule of the indian constitution where there are about 10 or 15 items which actually relate entirely to the question of international law issues you can say including law of the sea tax matters there are bilateral tax agreements there are number of areas where these are dealt with so now here when it comes to it's the executive even today he has the prerogative to conclude treaties he can put to parliament actually parliament this is one sort of you know what shall I say a very conflicting sort of situation which exists which both both Venkta Chalaya commission, Sarkaraya commission and even Punej Punej commission also examined and researched it so there are three commissions which have actually looked at this issue issue is the executive need not wait for the treaty to be the executive can actually conclude treaties and they can finalize treaties they can WDO treaty whatever treaty big treaty small treaty you know I almost make it you know there are 90 percent of the treaties as you are quite customary you know usually you go there you know culture in these treaties I worked in the external affairs for many I just said there are 10 percent treaties of five percent it is a very problematic case you know like nuclear you know conventions of becoming party to certain treaties where you have high financial obligations problematic actually as he rightly mentioned when you have to become a party to a treaty where it actually entails a huge financial obligation or national security interests or your other interests these treaties are quite problematic because there are treaties which require you to you know bring in legislation this is where article 253 of the constitution comes this is in part 11 so article 253 requires that in case implementation execution of a treaty is with the executive implementation is with the parliament under article 253 when implementation happens through a legislation or through a you know regulatory framework all this will have to be passed by the parliament so we have a in an anonymous situation wherein you execute a treaty in one sense by the executive where he has no authority to pass a law which goes to the parliament and parliament when it actually has to debate whether they then they will debate whether this treaty is good or bad and then they can actually no so far it has not happened but an anonymous situation is because aggregate is already bound bound by it then then you have legislation will have to be passed in such a way that you know you have to give implementation implementation is required of certain treaties of for example there are several agreements in WTO several agreements relating to intellectual property right there are a number of arbitration matters there are matters on which you need implementation otherwise it will actually hamper the rights of third parties well at the university there are treaties where people come to your country they invest they do a lot of things then you hamper their you know rights so you need a legislation so that's where article 253 actually requires a parliamentary approval so now this is a quite well known around the world I'm not saying anything new but in the Indian constitution with article 73 246 and 253 actually constitute the regime of what can I say is a transformation doctrine implementation of this now let me come to the cases now where first for example in the first I have written in a different context saying in three different contexts but now when it was first time it was examined by the Supreme Court in the Magan by Ishwar by Patel case in 1969 this is a case where Supreme Court first time went into this really examining this relationship elaborately the judgment extremely well written judgment where the court very clearly examined this problem because you know as I mentioned to you in my one of you know my writings I mentioned that this is the first stage of Indian post-independent first 20 years we had a lot of territorial disputes because we became two countries or three countries south asia we got divided so there were a number of conclaves number of orbital awards number of things to be adjusted so there were a number of territorial disputes so that's one reason we have article 51 directive principles which actually in any reference to international even a more softer terms because we thought we don't want to get into more adjudicated sort of a problem so we put it in article 51 because it's a directive principle of state policy nobody can say this is a constitutional right make it a more softer sort of a right way of obligation on the state but no binding nature of the international obligation so that's why article 51 see very clearly talks about this that's of course is a very very different matter nothing to do with what we are looking at courts are not going to be quoting article 51 but it's an obligation article 51 issue comes up in the context of relationship between fundamental rights and directive but that's we will not get in there are a number of judgments which the courts have given between the particularly the 70s regarding the relationship between how directive principles must be implemented which includes international law related issues as well there are five six lines in article 51 particularly article 51 see so now here you have a regime within the indian constitution which the court examined in the first case in the mug and buy but if you go back again territorial disputes I mentioned it is a very worry cases which we which became very important immediately after the independence where can a territory between two states be negotiated be decided by an executive does it require parliamentary or amendment of indian constitution because if you go by a go by the rule book I think any territorial issue if you are dealing with it any change of territory cessation of territory requires constitutional amendment the court had to decide this in the berubari question it went to an advisory opinion as well but where of course I don't want to get into which is a big area on which a lot of work has also been done so in the berubari cases of course the even including now as recently as last two three years ago when the india Bangladesh conclave were also exchanged properly and implemented all this include territorial adjustments now the point is simple there the court said and even if you look at one of the standard textbooks like brownley malcom show open name all of them actually say that territorial sort of adjustments require in certain cases parliamentary approval certain cases you may not require so that's very clearly stated by them but the court in fact said very clearly this is the position of the indian court saying that in case if it is subject to an award given by a duly constituted commission then in case if there is adjustment had to be made you don't then need an amendment of the constitution but if it's some simple adjustment initially the government had argued before the court in maganbhai for example saying that this requires two prime ministers have the power to do it but actually the court did not agree but later court did agree in maganbhai after all berubari and actually the maganbhai the berubari cases were overruled in fact up to a point by maganbhai saying that in 1970 that yes court can the sorry the executive can do it provided if there is a proper speaking order award then that award can be you know implementation of the award they can actually overcome this problem of going into a constitutional amendment of course the berubari cases led to the sixth amendment of our constitution because of the advisor opinion and etc and that is entirely international of issue excellent decisions at that point of time given by the supreme court judges of the time at that point of time so now from there if you come to the the problem of transformation and the incorporation incorporation is where it becomes a law of the land see international become law of the land of course as provost supreme has very well put it is the united states of america which has this because of certain procedural requirements of course nothing becomes law of the land even in the united states because in the united states because of their you know method that modus operandi where the president of united states is granted certain you know the negotiating powers be before by the senate and the congress so he exercises power actually so when he signs a treaty he has already authorized so obviously that becomes automatically law of the land but of course americans also have a huge problem in implementation because of the the federal structure because some of the states do not accept this say avena cases before the icj where the mexican citizen was actually uh executed with without even in the provisional measures this was in the early 2000 and american the the the the texas state of texas actually executed one of the mexicans citizens because you know without for not providing a consular access the icj had issued a provisional measure but so i mean so but the state went ahead and did what it had to do the state of texas so obviously america also had a problem where on the obama regime they wanted to come out with a restatement of applying international law properly and to deal with it so americans also have a problem now of course the american judge who is heading the president is the president of the america the icj now they've issued a provisional measure against ukraine but now how we are going to deal with the same issue with vis-a-vis america is a different issue you know the same judge so there is there are a number of such contradictions which exist which i'm sure the all international lawyers should take note of when the when it comes to issue of provisional measures by the icj or even by the international law of the sea so coming to this in the 1984 i've mentioned about nagan by 1970 the supreme court decision 1984 gramophone against supreme court decision so now the one of the you know the the took a lot of time for the indian supreme court or indian judiciary to actually negotiate between transformation and incorporation theory by the international i have become really complex it need to be implemented then it was first time actually you know where in supreme court actually took almost in the gramophone in 1984 i mentioned to you supreme court wanted to get into incorporation set you know okay in case if there is a international law principle which is as provisional professor superman i mentioned customary international law consistent with the basic structure of constitution we can actually implement it directly something like that they wanted to say but they didn't say because i know a number of cases supreme court went on to say that it okay international law even if it is okay with the constitution but if it conflicts with any of the domestic law then we can't implement international that is the position they consistently took but that had a little twist in the context of vishaka in 1997 and in vishaka the harassment of the you know women in workplaces there was no law on the subject and it was a very interesting case very important case uh and also the you know one should look at the judges who actually also dealt with this issue because you know some of the excellent judges who of supreme court this needs to be studied as well in my view for example that jay's varma came out with this excellent bench in the vishaka case they took up the humanitarian women human rights issues and then the they actually evolved number of basic principles when there was no law as a supplementary part of the interpretation they provided a whole regime of gender sensitization for the country so vishaka actually is something which actually broke away from the existing transformation doctrine to incorporation doctrine i must say and apply and of course it's it's consistent with the basic tenets of the indian constitution i think supreme court has actually moved into a territory where to say that in case if there is nothing look at constitutional uh touchstone if it is okay just implement it you can take that that's where after 97 they have gone into and this actually uh you know another celebrated sb sinna in 2008 this is again a technology related case entertainment super super uh cassettes case 2008 i'm sure all of you remember where sinna laid down five or six principles sb sinna one of the great judgments i must say where this is about the radio waves whether they are free whether they should be charged and where corporate conventions were involved and india was party to some of these corporate conventions and there are no proper law on the subject in the within the corporate regime to deal with the technology related issues where then he laid down how international law could be used as a tool to change the existing legal interpretation of the courts very very well put by the by by uh honorable judge sinna so where again you went into more into a incorporation theory not into a transformation so now that is the last stage actually now if you look at today uh you know uh number of cases which have come up in the decade of 2010 to 2022 as of now and then you had navratis you had you had uh uh you had navrat you had navratis enrica lexi navratis vodafone then put judgment and then there are at least five or six judgments wherein the courts have courted very very clearly as to what i supreme court i'm talking about supreme court there are number of high courts also have followed suit saying that how exactly they need to look at these issues particularly if you look at put a swami judgment put swami judgment is a classic judgment wherein they have quoted from human human rights point of view but in their own way see even up to the gender parity lgbt rights and then which of course uh navratis enrica all these cases have come up you know where the indian courts from the more uh you know more uh technical technological issues up to a personal freedom all kinds of things have been taken by the courts it's like a melting pot i must say uh this is where actually uh i don't want to get into vodafone for example is a very complex case where corporate structures had to be looked at corporate uh how it is a very complicated decision because various corporations taxing how to tax a corporation because particularly when you look at that there is a map which has been given by justice kappadia which is very interesting where how actually companies tie up each other under the taxation agreement and how it actually becomes very complicated so then how do you deal with this issue you can't go for you know so in my view i think indian courts have taken a more pragmatic view of things and then they are balancing between transformation and incorporation documents now but already an interpretative uh sort of a thing which has already come in the in several cases earlier only in case if there is a clear conflict between international law and domestic law and if the court has to decide what you should do the courts particularly uh most most uncelebrated judgment in adm javelpur in the in the descending opinion kanna very clearly said this point so uh it was pointed out to me by one of the judges also we court itself saying that you have quoted this case but this is unfortunately a very dark sort of a history of this javelpur case but i said sir what to do but he has mentioned this now what he said was very important he said in case if there is a conflict between international law and municipal or domestic law and if there are more than one interpretation is available to this in conflict you must take that interpretation which is which is likely to bring more harmony into international and municipal so so that is where the supreme court has actually actually said supreme court is actually saying that in case if there are more than one or two or three more interpretations are available take that interpretation this is where lawyers will have to work hard find an interpretation which is very harmonious which is good for the you know now for example there are so many of the complex technological problem there are jurisdictional issues there are number of you know issues which are today with the social media coming in we need this kind of an approach so where you can have two or three different which the court is doing it actually and of course kultip Singh in the case of environmental you know jurisprudence i'm sure there are number of cases which have come up social social legal issues have come up and but today later of course the the approach of the court also has changed which probably bakshi has very well put it post 91 after reforms the courts also become more you know different approach you know earlier it was different now the courts are becoming more pragmatic now you may not get the kind of judgments you got in when we in Bhagavati gave in the 1980s so in other words what i am trying to mention to you you have Lord Denning and you have celebrated judges in US Supreme Court even today of course your Supreme Court has come out with if you look at that way the on the patent genes etc the kind of decisions it depends on which side of the fence whether conservative or liberal depending upon the political setup within the United States similarly in the Indian courts you can actually when you want to study this international law municipal law interface now the next stage perhaps for all of us including myself we'll have to look at how judges are actually looking at it i know i don't have to tell you those who are actually working in the court very close to the court and you know you can actually decide you will know what judgments you want to come in case who is interested in international law who is going to give listen to you when you are putting up a sort of a decision with elaborate sort of a menu of international law and put it in such a way that it can actually become part of the judgments so this is what is happening in many cases but it is the the last point which i want to mention to you is this is again i'm in the realm of i mean Enrica Lexi and then all these judgments i remember one of the judges of the Enrica Lexi you know i think he when he came to deliver a lecture he said he in fact did not study international till after his LLB so obviously you know it was first time he is listening to many of these arguments in the court first time he was looking at some of these decisions this is interpretations the judges need to be really you know then the lawyers will have to really work hard to provide this information i'm sure the young lord which is coming is quite conversant with both international and municipal law and they are providing this kind of a new interpretation new ideas i think that's what is happening as i can see you know every year we look at several judgments where actually the courts are interpreting it in such a way that we are in tune with the global trends so that is very very important so i don't want to take much time i'll take the last point which i wanted to mention is this is about generally about public but you also have a private international aspect exactly custody cases abduction cases and then the matrimonial cases these are complex cases where of course the courts will have to deal with complex set of factors so need to understand the nuances of how to actually implement some of these decisions or what are the implications so for example there are hate conventions hate convention or private international law where number of conventions are available to which India did not become a party but some of the convention will become a party now where in case of a child is abducted or if there is abduction means that when one spouse brings the child to India other one stays in us and then there are you know diverse proceedings going in us then the parallel proceedings are going in the India then how to deal all these are all part of international so very very complex issues where of course the courts have given excellent decisions so film court has given excellent at least a couple of decisions are very good decisions based on on various factors take into account the private international aspect and the court was very well assisted and of course the court is also looking for help sometimes you know in order to understand some of these complications so this is increasing because of technology intellectual property rights and other related areas and implementation of WTO agreements there are a number of and of course the national security issues are also becoming very important in recent time the courts are dealing with it so in other words I just want to conclude by saying that the the court is doing whatever it can do whether all courts including high courts and supreme courts about the implementation but I have if I have said it and I have written it also that because of lack of proper understanding of this interface as Professor Subramanya mentioned earlier is one of the most difficult very tough areas where judges first to source international what is international sourcing of everything is not customary international how to define customary international how what is binding what is not binding a declaration a principle a guideline is not binding so and some of the decisions courts they simply said sustainable development precautionary principle is a customer international it is not but court said it because court actually didn't was not properly briefed so there is a lack of you know that makes a whole lot of difference in the interpretative matrix of the court and then it actually creates a very very although it could be an orbiter but still it will create a very very bad jurisprudence first is to identification understanding sources of international property as as he has mentioned it so well treaties are easy but how treaties actually are binding not binding and what is the nature of customer international law even today it depends on various factors a student of international law like me also sometimes finds it reflects actually to understand how that actually works so we need to understand that actually and then now it has become because of the increasing globalization by that being bilateral investment treaties or or negating them or or I mean we we have now renegotiating some of these treaties or cross border issues which actually exist all these issues will have to be examined in the context of you know what kind of practices exist so we are into a more nebulous area state practice may not be available because for example all banking transactions which happen whether it is swift or whether it is other things they are not done by states it's done by a host of institution which are internet including is a by private party there is a whole administrative international administrative law which is developing which is actually trying to regulate all these things where state is not a party internet is not regulated by state internet is the corporation which is located in the united states there's a whole load of asymmetry that exists I keep saying between developed and developing countries in regulating these things so courts will have to understand all these things in implementing at the end of the day the role of the court where whether in india us or anywhere is to provide justice but last or a lighter note justice of course they always provide justice because if you look at a typical patent dispute between apple and samsung apple always wins in united states apple always loses against samsung in south korea which is natural so you know the jurisdiction I don't have to mention to you samsung always wins its case in south korea apple always wins its cases against samsung in us so that's how still it works so let's understand this but within those parameters on a more realistic basis I think the Indian courts are applying you know more complicated things are you know judges also will have to be really aware of the latest developments in a area of not just in law in other kinds of things and then that will go a long way because international law the the the last cent really last one I want to say the animus slaughter mentioned some 20 years ago the future of domestic law is international international because everything today domestic law whichever we are actually managing or preparing whether it's arbitration whether intellectual property rights labor laws all these are actually amended because you're party through something or because you're in the context of globalization so future of domestic law is international it's now really changed without understanding international or difficult to understand the construction of competition law or the interface between competition law and IPRs or between cross-border insolvency or some other areas without understanding these things you can't actually understand those things so it is becoming complex so international law is essential in this regard I'm sure over the years I'm sure the Indian courts are evolving and evolved up to a point and this will go a long way in our study of this area so so so we need to get into our basics correctly and finally of course the courts are the best judges in order to understand and implement these issues I wish to thank once again the the colleagues Vikas Ji and then Prabhu Subramanya for giving me this time to speak on this topic thank you very much. That shows that in respect of both of you and rather also on the YouTube that you have summed up the interplay between the international law as well as how it has to be developed and how it has been developing like when we were connecting through Dr. Subramanya he said that it will be a knowledge in a capsule form and that's true and they say the capsule gives the best effect and I will ask Dr. Tia Subramanya to have his words because I'll just check it out the YouTube as to whether we have any questions. Dr. Subramanya. I don't have any questions if there are questions if I know I shall answer I'm just checking yeah I am checking yeah yeah. So is the chat there now? Yes I checked the chat yeah somebody has asked from the heck day at private law domain even Indian district courts have statutory legislation to try and adjudicate any such matters I think it was Robin who is asked I think yeah there is yeah district courts one procedural aspects do they have I think on many I had mentioned to you they may not have on the substantive aspects but on the procedural aspects like you know custody or there is a foreigner you have to give you minimum treatment then matrimonial maintenance cases these are there are several cases I can give you least of this you know the cases where the courts are going to look at these issues you know so there are a number of areas where I I listed it down. But we can have a what's up a screenshot and share it in the group. Yeah so yeah somebody referred to again himself Jet Airways case I agree Italian Marins case harmonious construction of making laws effective I agree with him and then rest is yeah rest is fine I think yeah. So this is the last question can you enlighten on the double Reno we in Indian case? Yeah I find it difficult to say it now right now that requires a bit of looking in the private international now so so double Reno is a concept which is requires a bit of I have not recently looked at it so let me not hazard a guess on this issue right now. So that was the questions and it was an enlightening session it says what prevents the government of. Moit has asked under article two prevents government of India making a law under article no actually Moit is I know Moit so one of our students actually you know you should look at it article two fifty three see as Professor Subramanya mentioned of course I did this job in I was the desk officer in the ministry see whenever you enter into a treaty executive I will mention to you under the business of India government of rules business rules you when you prepare it is the cabinet note is prepared cabinet note when it's prepared it's interim ministerial there are four or five ministers involved where you have to mention when you are becoming a treaty when you are actually becoming a party or treaty one column is there it requires you to answer does it require any change in the existing legislation or does it require any new legislation you have to answer this question so so then you have to mention that in case if there are required changes etc etc so all cabinet notes will have to answer this question and later of course it will be taken to a parliament. Professor along with this because since I worked as an advisor to a government I know this there will be two other questions as well this will be asked and the legal advisors are supposed to supply a note to the concerned officials who represent the government now the first one as I said does it require any legislation national legislation and if it is required in which area is it in the criminal area or the procedural law or the substantive law that has to be indicated and the article has to be pointed out. Now the second most important thing is what exactly the financial commission in the event of becoming a party whether the concerned state is going to incur a expenditure and if it is to the tune of what and that has to be very clearly pointed out then the third most important thing is on becoming a party how it is going to serve the state of India or any other state for example I was representing one of the states it what way it is going to benefit the concerned state and is it going to provide any extra additional revenue to the concerned state and your note should be on that. I agree with you that's true. I think there is a similar question on article 253 implementing internet no there is no legislation as such on the 253 253 if you read 253 by itself is actually in case if there is an implementing legislation required it should go to a go to parliament that's what it says I can quote you but anyway it's not required now but the what is important under the article 253 is see now when you are actually planning a implementing legislation see both the Venkta Chalaya commission, Sarkarya commission all these commissions have pointed out that in case it become a party to a treaty which parliament may not approve later what will happen that is the problem actually see for example I think my good student Mohit might know the nuclear related you know when we became party to some of the liability conventions relating to Vienna and Paris conventions when the nuclear law nuclear this debate which was going on for quite some time when the Manmohan Singh government so that this was one of the important issues because these were actually India became a party without actually looking at the liability issues later of course we brought out legislation properly and where in the issue of compensation which should be provided now that was limited to 1500 crores in case of a nuclear disaster which is of course hypothetical or academic in nature but very very crucial in the context of some of the problems we had Fukushima or Chernobyl etc so later so these are the areas where parliament debates become very important and the what actually will happen is the government will take into account those parliamentary debates and incorporate those changes again into the legislation see legislation per se will not be you know parliament will pass definitely will pass but parliament will pass with the kind of changes which are required actually that's where exactly it has to be done the parliament will say okay you change this change that do this so those are the things which are you know so but still there is a little anomaly I mean a little bit problem there actually which somehow governments do not want to change that for various reasons I'm sure I do not have to explain so as of now Professor I did one more thing that is involved here now before or at the time of receiving an invitation from the conveners to the conference and when the invitation is received by the ministry of fiscal affairs first and foremost there in the note which is being prepared by them they have to say whether to what extent it is important to the country and in what way it is going to increase enhance the relationship between the two is fundamental thing so thereby the concerned state has to take a call should it take part in the proceedings of treaty itself right from the beginning there are plenty of instances wherein even the state of India has not taken part at all so taking part in the proceedings to the treaty itself involves a lot of expenditure for the concerned government for example I can just tell you law this conference you just see how many sessions it has taken place 1973-1980 that means what 10 sessions it has taken place but in different places not for one day and entire expenses has to be borne by the government of India but then it was very much essential because say India has landlocked states and other states and we have a coastline which is spreading over almost 10 states in a where the government of India was prepared but these days first is it will take a call should they take part and if they decide to take part then again they will ask what would be the expenses that would come in so these are the things which were practiced earlier and to a certain extent with this practice now also now the other thing is when they decide to take part should they go and just participate as spectators and sign the proceedings and come it will have no bearing at all on the government of India and many African states they just go they take part and just come and submit a report to their government and afterwards if they decide to become a party then again remember they ask is it a signature or signature after ratification so signing of the treaty is totally different from signature as well as ratification that is at the end of the day these many people have participated that is only signing but then you cannot it is not binding to any level to on the concerned state so these are some of the things why you're acting on experience I'm just telling you okay yes we'll be shall we call it a day yes sir yeah thank you it was a quite eliminating session for everyone thank you professor Higley and Dr Subramaneem we are all enriched by your white knowledge and white experience thank you