International Law – A supplement to the rule of law

Authored By:

Vivek Badoni (Jr. Associate Editor)


When we are given a task of making a sharp contrast between International law and the rule of law, we come across a dilemma whether they complement each other. Thinking about international law aiding rule of law might appear odd but due to the effect of the global village rule of law limited to national law and national borders do not suffice. One may think that due to particular characteristics of international law and the international community, they may come in conflict with the rule of law. But by studying unique standards of the rule of law we will come to know that why rule of law needs international law, it will also obviate the perception that international law serves as a shelter for unlimited power of national rulers.

According to Henkin, the doctrine of the ROL was conceived by Magna Carta Libertatum in 1215. Henkin states: “A perhaps innocent, incidental phrase in Magna Carta, providing that a freeman shall be punished only ‘by the lawful judgment of his peers or by the law of the land’,

came to establish the rule of law...[1]” Some political scientists while tracing rule of law back to the Anglo-Saxon period consider rule of law as a limitation of governmental power by the law in favour of basic rights and freedoms. At that time, King too had to follow the advice of “Witan” while making laws and taking important policy decisions and it acted as a “check” on arbitrary powers of King. But in contemporary era judiciary checks the unbridled powers of the government by upholding the rule of law in letter and spirit. In a country governed by rule of law in a true spirit, courts are armed with mammoth powers to declare legislation or diktat by the government being null and void if it abridges the basic fundamental rights of the citizens. Concluding his lecture on the rule of law, delivered at Cambridge University on 16 November 2006, Lord Bingham stated that the rule of law “does depend on an unspoken but fundamental bargain between the individual and the state, the governed and the governor, by which both sacrifice measure of the freedom and power which they would otherwise enjoy[2]

Authors enumerate the various standards of the rule of law. Some of them are fundamentally etched in the term “rule of law” itself. As the terms suggest no one should be above the law. This encompasses the principle of equality within its ambit. States, governments, institutions- public and private, public and private enterprises and the individuals, all are subordinate to the law. The law has to consist of general rules, declaring unequivocally the objective it seeks to achieve. It should be publicly accessible so that the people are aware of the law of the land and the state can justify “Ignorantia Juris non-excusa”. It should agree with international human rights law. There should be an independent judiciary to look after the proper implementation of the law. It will also act as a final interpreter of the law of the land. Every individual should be allowed an opportunity to approach courts for the protection of his basic rights.

Though the popular notion is about the applicability of the rule of law in the domestic sphere to protect individual’s rights and freedoms, such a concept is not complete. Waldron remarks correctly: “it may be a mistake to think that the ROL aims only to protect subjects from the state, government, or law itself. It also aims to protect them from one another, both from other individuals at the national level and perhaps from other nation-states at the international level”.

If we confine the rule of law within the four walls of the state, it will leave the citizens of the state unsecured while interacting at an international level. Issues related to climate environment and security affect individuals across the sea. While dealing at an international level, states reflect the wishes and the aspirations of their citizens. Thus for the well being of citizens of the state. Rule of law needs to be supplemented by the rule of law. International law covers within its ambit the broad concepts and leaves certain freedom to states in fulfilling their obligations. Moreover, the relationship at the international level is not that of the governor and the governed. There is no judiciary to check the arbitrariness, no executive, and no central government. Waldron says that “the ROL may be thought to require clarity in the rules that are applied to states in the international arena; it may be thought to prohibit the imposition of international obligations on states by norms whose meaning is controversial or unclear”[3] and notes that some governments have objected that various international human rights provision violate ROL standards, being not clear enough. Therefore it cannot be denied that international treaties contain sometimes controversial or unclear provisions. However, it is rather an exception than a regular phenomenon of international law.

The frequent, but not prevailing, characteristic of provisions of international law is their breadth and abstractness. Under “broad” or “flexible” international provisions we understand the provisions that leave significant discretion to a State in respect of their execution. Such provisions are characterized by the absence of strict international obligations with respect to a precise result that has to be achieved or in respect of the means for its achievement. Many international laws are not fully implemented by the member states despite their ratification by bringing legislations in consonance with them. States, thus make use of reservation with regard to certain provisions of international law. Under “abstract” international provisions we understand the provisions whose content does not determine precisely each legal situation on which the provisions apply. “Abstract” international provisions leave also some discretion to States, but it is not as large as it is in the case of “broad” international provisions. If we take the examples of International Covenant on Civil and Political Rights (ICCPR) that outlines civil and political rights such as the right to life (Article 6), freedom from torture and cruel, inhuman or degrading treatment (Article 7), freedom from slavery (Article 8), the right to liberty (Article 10) and the right to respect for privacy and family (Article 17), and International Covenant on Economic and Cultural Rights (ICESCR) that outlines economic, social and cultural rights which protect the necessities for life which includes the rights to food and water, to have a roof over your head, and to adequate healthcare. We will observe that our constitution i.e. the constitution of India contain certain provisions which are in consonance with these conventions. The chapter dealing with fundamental rights and directive principles of state policy reflects the true implementation of these international conventions by the maker of the world’s largest constitution.

As we know to regulate social interaction at the national level is much easier than regulating the same at an international level. States search for solutions that will enable the achievement of a common goal and the preservation of particular interests as far as possible. Due to that reason, international provisions foresee sometimes a range of alternative results and by achieving one of them a party fulfils obligations, established by these provisions. In addition to these some unambiguous and the purported arbitrary provisions also hamper the implementation. This is perhaps the reason that even after 28 years of United Nations Framework Convention on Climate Change (UNFCCC) which upon ratification committed signatories' governments to reduce atmospheric concentrations of greenhouse gases with the goal of "preventing dangerous anthropogenic interference with Earth's climate system", we haven’t achieved the desired results. The failure to achieve meaningful progress and reach effective CO2-reducing policy treaties among the parties over the past eighteen years has driven some countries like the United States to hold back from ratifying the UNFCCC's most important agreement — the Kyoto Protocol — in large part because the treaty did not cover developing countries which now include the largest CO2 emitters. Article 3(1) of the Convention[7] states that Parties should act to protect the climate system based on "common but differentiated responsibilities and respective capabilities", and that developed country Parties should "take the lead" in addressing climate change. Under Article 4, all Parties make general commitments to address climate change through, for example, climate change mitigation and adapting to the eventual impacts of climate change. A good deal of international treaties is of a legislative character and the reason for the abstractness of their provisions is the same as the reason for the abstractness of any national legislative act.

If internal constitutional rules allow the direct effect of international provisions, subjects can invoke them before internal courts, asking for the protection of their rights derived from such provisions. In such cases, their determinative incompleteness might not be eliminated in the process of implementation. In these cases, Supreme national courts are of the key importance for the ROL. By making a final determination of law in concrete situations, the supreme judicial authority harmonizes national judicial practice, providing legal certainty and equality before the law. There is nothing comparable at the international level. We have a wonderful example of this avenue in the context of India. In Vishakha v. State of Rajasthan[4] , In 1992, Bhanwari Devi, a Dalit woman who was a social worker employed with the Rural Development Programme of the Government of Rajasthan was gang-raped. This highlighted the extents of sexual harassment incidents in India’s workplaces. It struck a chord with the nation and revealed the hazards working women face in the workplace. The Supreme Court framed guidelines and issued directions to the Union of India for a law to combat workplace sexual harassment. While deciding the case, two international conventions form the very basis of the judgement of the court. These two conventions were :

1. General Recommendation 19 to the Convention on Elimination of All Forms of Discrimination against Women (CEDAW): India, which is a party to this convention, and has ratified the same in 1993, has taken from it aspects of equality of women in the workplace, gender-specific violence, and unwelcome sexually-determined behaviour and adopted them into POSH Act.

2. International Labour Convention on Discrimination (Employment and Occupation) Convention (No. C111): India ratified this document on 3 June 1960. Through this Convention, India has an obligation to prohibit and prevent any gender-based discrimination in the workplace.

On the other hand, in the case of implementation, the interaction between international provisions and an internal implementing act remains alive, at least, in the process of interpretation. Interpreting an internal implementing act, a national judge can take into account its international source. Again referring to India, In M.C. Mehta v. Union of India [5], Sivakasi was considered as one of the worst regions that violated these provisions by employing young children in its match factories. The court noted that the manufacturing process of matches and fireworks is hazardous to the health of children and may give rise to fatal accidents. The court noted that the process of manufacturing matches and fireworks is hazardous and may give rise to accidents. By relying on Article 39(f) and Article 45 of the Constitution, the court gave certain directions to improve the quality of life of children employed in the factories. The Court dealt with this issue with a wider perspective by taking into account the situation of Child Labour in other parts of the country and discussed how the constitution mandates health, development and education of children through its provision. The judgement of the court was largely inspired by the international convention on the rights of the child in addition to constitutional provisions.

Convention on Rights of the Child to which India is a party to, affirms that children’s right requires special protection and it aims, not only to provide such protection but also to ensure the continuous improvement in the situation of children all over the world, as well as their development and education in conditions of peace and security. Thus, the Convection not only protects the child’s civil and political right but also extends protection to a child’s economic, social, cultural and humanitarian rights. International Labour Organization has laid down 5 main focus areas for the gradual elimination of Child Labour-

1. Prohibition of children labour.

2. Protecting child labour at work.

3. Attacking the basic causes of child labour.

4. Helping children to adapt to future work.

5. Protecting the children of working parents.

A royal commission on Labour was also established in 1929 under the British Government to inquire into various matters relating to labour in India. The commission examined the conditions of Child Labour in India and found out that children are made to work for any number of hours every day. The recommendations of the committee were discussed in the Legislative assembly and The Children (pleading of labour) Act, 1933 was passed, which the first statutory enactment dealing with child labour. Today there are various legislations that prohibit the employment of child labours. Section 67 of the Factories Act, 1948, Section 109 of the Merchant Shipping Act, 1951, Section 45 of the Mines Act, 1952, Section 21 of the Motor Transport Workers Act, 1961, Section 3 of the Apprentices Act, 1961, Section 24 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 strongly prohibit child labour. Thus we saw the beautiful harmonious construction emanating from the interpretation of our courts.

Concludingly I will say that a large part of the domestic laws derives their source from international conventions and treaties, international human rights law. Indian constitution derives the true power of fundamental rights in the light of international human rights law. It is because of the presence of Geneva Conventions in the light of the Universal Declaration of Human Rights 1948 that civilians, doctors and health workers are saved during the war. India repatriated its brave Indian Air Force soldier “Abhinandan” after Pulwama Attack by virtue of this convention emanating from International human rights law. We need to thank the aid provided by international law in developing our domestic laws and thereby strengthening our rule of law. Standards of the ROL can be separated between those related to some qualities of the law, such as sufficient clarity and determinative power of the legal provisions to exclude the arbitrary exercise of a State’s authority, and those related to legal order, the separation of powers, organization of judicial system etc. Purposes of the ROL include providing all subjects with legal certainty and protection of individual freedom and well-being against illegal interferences.

References :

1.http://lawtimesjournal.in/m-c-mehta-v-state-of-tamil-nadu-and-others-1996-the-child-labour- ase/#:~:text=M.C.-,Mehta%20v.,Child%20Labour%20Case%20%E2%80%93%20Case%20Summary&text=Child%20labour%20is%20a%20practice,time%20or%20full%20time%20basis.&text=In%20the%20present%20case%2C%20Sivakasi,violating%20fundamental%20rights%20of%20children.

2.http://lawtimesjournal.in/vishakha-vs-state-of-Rajasthan/

3.https://en.wikipedia.org/wiki/United_Nations_Framework_Convention_on_Climate_Change

[1] L. Henkin, “The Age of Rights”, Human Rights (eds. L. Henkin, G. L. Neuman, D. F. Orentlicher, D. W. Leebron), University Casebook Series, New York 1999, 11. [2] L. Bingham, “The Rule of Law”, Cambridge Law Journal 1/2007, 84. [3] Concerning the protection of individuals from other nation-states at international level, see E. Benvenisty, “Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders”, American Journal of International Law (AJIL) 2/2013, 295−333. [4] AIR 1997 SC. 3011, [5] AIR 1997 SC 699

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