INDIA & INTERNATIONAL TREATIES : BINDING OR NOT?

Sunakshi Choudhary

INTRODUCTION
Upendra Baxi
“International human rights law, though not always binding, influences constitutionalism
profoundly1
.”

In the contemporary globalized landscape, universal treaties are essential in forming national
strategies and genuine frameworks. Countries such as India often enter into treaties on diverse
matters, spanning discussions about the environment, human rights, and security. Yet, this
raises a significant question—are international treaties acknowledged within the Indian legal
structure?
Under Monist framework, International law & domestic law are regarded as components of a
unified legal system allowing treaties to inevitably become portion of domestic law upon
ratification.
In contrast, A Dualist framework, followed by India, maintains a clear parting between the
two. Under dualism, global agreements do not gain the influence of law within the country
unless they are explicitly transformed into domestic legislation by Parliament.
Article 253 permits Parliament the authority to formulate laws for the execution of treaties. In
any event, the absence of a planned merging clause suggests that treaties—regardless of their
official status on the international stage—are not enforceable in Indian courts unless they are
accompanied by specific legislative enactments. This perspective has been validated and
articulated by Indian courts in several key judgments, including Magan bhai Patel v. Union of
India2 and Jaunty George Varghese v. Bank of Cochin3

. Moreover, the judiciary has
occasionally utilized international conventions to bridge legislative gaps, as evidenced in the
famous case of Vishaka v. State of Rajasthan4
.

1 Upendra Baxi, “Constitutionalism as a site of state Formative Practices” in Law, Justice and Society: Selected
Works of Upendra Baxi (Eastern Book Company, 2007) 210.
2
AIR 1969 SC 783.
3 AIR 1980 SC 470.
4 AIR 1997 SC 3011.

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Difficulties arise when India is involved in disputes before international courts such as the ICJ.
While India acknowledges the authority of the ICJ and has complied with its decisions in cases
like the Kulbhushan Jadhav case5

, these rulings do not automatically invalidate Indian law

unless they are enacted through a statutory instrument.
GLOBAL RULES FOR TREATIES
Treaties are formalized agreements between states, recognized under international law. Their
framework is primarily established by the Vienna Convention on the Law of Treaties, 1969
6
(VCLT) which is widely considered an indispensable part of international law, even though
India has not signed it.
Article 2(1)(a) expresses a treaty as a written agreement between states governed by
international law7
.

Article 26 (Pacta Sunt Servanda) necessitates that treaties in force must be executed in good
faith8
.
Article 27 prohibits states from citing domestic laws as a reason to evade treaty obligations9
.
In summary, once a treaty is ratified, it becomes binding on a state under international law, and
domestic legal challenges cannot be used to justify non-compliance.
TREATIES ARE OF TWO TYPES:
Bilateral: Between two countries.
Multilateral: Involving multiple states (e.g., UN treaties, WTO agreements).
TREATIES VS CUSTOMARY LAWS
Treaties are based on consent and are documented, providing greater legal clarity. Customary
international law, although not written, is obligatory due to constant state practice and a belief
in legal obligation10
.

5
India v. Pakistan (2019) ICJ Rep 418.
6 Vienna Convention on the Law of Treaties, 1969 (adopted on 23rd may, 1969, entered into force on 27th
January 1980, 1155 UNTS 331).
7
Supra note 6 at 2, art. 2(1)(a).
8
Supra note 6 at 2, art. 26.
9 Supra note 6 at 2, art. 27.
10 Disentangling Treaty and Customary practices (available at: Disentangling Treaty and Customary
International Law on JSTOR) (Last visited on 25th June, 2025)

3

ENFORCEABILITY ISSUE:
Although treaties are binding on an international scale, domestic legal systems depends on
whether a country follows a monist or dualist legal framework. In monist states, treaties
become law upon ratification; in dualist states like India, they require separate legislation to
take effect domestically.
MONOIST & DUALIST SYSTEM 11
A crucial aspect in Identifying whether International treaties are authoritative within a nation
is the approach that nation takes towards international law & its affiliation with domestic
(national) law. This approach is generally classified into two broad theories: Monism and
Dualism.

1. MONIST SYSTEM
   International law & domestic law are viewed as parts of a integrated legal system. Once a treaty
   is sanctioned, it inevitably becomes part of national law and can be directly enforced by the
   courts without the need for new domestic legislation.
   Key Features of Monism
2. No necessity for discrete legislation to make provisions effective.
3. International law takes direct effect within the national legal system.
4. Provisions can even override conflicting domestic laws (in some countries).
   Example Nations:
   Netherlands: Article 93 of its Constitution allows treaties to have direct effect12
   .

France and Russia: obey to monist principles where international treaties can be directly
appealed in courts.

2. DUALIST SYSTEMI
   International law & domestic law are treated as two distinct and independent legal systems. In
   such countries, ratifying a treaty is not sufficient. The agreement must be ‘transformed’ into

11 Monism and dualism in International law, available at: Monism and dualism in international law –
Wikipedia(Last visited on 25th June, 2025)
12 Constitution of the Kingdom of Netherlands,2008(as amended), available at: The Constitution of the
Kingdom of the Netherlands 2008 | Regulation | Government.nl ( Last visited on 25th June, 2025)

4

domestic law through appropriate regulation passed by Parliament before it can be enforced in
national courts.
Key Features of Dualism

1. Treaties are not automatically binding domestically.
2. Parliament or the legislature must enact a law to implement a treaty.
3. Domestic law prevails in case of a conflict, unless the treaty is formally adopted.
   Example Countries: India, United Kingdom, Australia
   Example :
   R v Secretary of State for Domestic Affairs, ex parte Brind (1991)
   13:

UK court held that unless Parliament sanctions a treaty provision into law, courts cannot
enforce it.
INDIA’S STAND
India’s standpoint on the relevance of international agreements is shaped by its legal agenda,
particularly under its Constitution and the principle of dualism. The following outlines its
functioning:
The revised provisions of the Constitution of India directly pertain to international treaties and
their enforcement. Article 51(c)14, which falls under the Directive Principles of State Policy15
,
indicates that the State seeks to encourage respect for international law and treaty obligations.
In Article 51(c)16, ‘International Law’ and ‘Treaty obligations’ are mentioned distinctly. As
stated by Prof. C. H. Alexandrowicz17, the term ‘International Law’ refers to Customary
International Law, while ‘Treaty Obligations’ denotes the responsibilities that emerge from
International Treaties18
.

1. Dualist Approach

13 1 AC 696 (HL)
14 The Constitution of India, art. 51(c)
15 The Constitution of India, art 51
16 Supra note 14 at 4
17 C.H. Alexandrowicz, International law and the Indian Constitution (1972) 2 Indian YBIL 187.
18 DR. Kinna T. Chadokia, “The Standing International Treaties under Constitution: An Indian Perspective”: An
International Multidisciplinary Journal, ISSN 2455-314x, VOL 7, ISSUE 4.

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India adopts a dualistic approach to the affiliation between international law and local law. This
means that treaties & conventions do not mechanically become part of Indian law upon
ratification. They must be explicitly merged into Indian domestic law by Parliament before
they hold legal significance within the country.
Ratification of Treaties:
India can ratify an international treaty, but it does not automatically supersede or alter domestic
laws unless specific legislation is passed by Parliament to integrate the treaty’s provisions into
Indian law.
Example:
While India has ratified the Convention on the Elimination of All Forms of Discrimination
Against Women19 (CEDAW), the provisions of CEDAW are not automatically enforceable in
Indian courts unless Parliament enacts specific laws in line with the treaty’s standards.
ROLE OF PARLIAMENT IN INCORPORATING TREATIES:

• Legislation Required: For a treaty to have official effect on Indian citizens, it necessitates
  legislation by the Indian Parliament. Once passed, it becomes part of Indian law.
• Article 253 of our Constitution20 vests Parliament with the right to enact laws for the
  implementation of international treaties, even if the subject matter is not otherwise covered
  under the Constitution.
  Legal Interpretation of Treaties:
• Indian courts may mention the international treaties when interpreting domestic laws,
  especially if they do not conflict with Indian statutes or the Constitution.
• Indian courts may also construe domestic laws in light of international commitments,
  particularly if a law is ambiguous or silent on a matter.
  ROLE OF ARTICLE 253 WITH REFERENCE TO INTERNATIONAL TREATIES21
  Article 253 grants the Indian Parliament the authority to legislate for the purpose of
  implementing international agreements, treaties, or decisions, even if the subject matter of such
  19 Convention on the Elimination of All Forms of Discrimination Against Women, 1979, 1249 UNTS 13.
  20 Constitution of India, art. 253.
  21 Dr. Kinna T. Chadokia, “The standing International Treaties Under Constitution: An Indian Perspective”: An
  International Multidisciplinary Journal, ISSN 2455-314X, VOL 7 ISSUE 4.

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laws typically falls under the State List, which is the area where only state governments are
usually empowered to legislate.
WHY IS ARTICLE 253 IMPORTANT?
India adheres to a dualist legal framework, which means that global agreements do not
mechanically become a share of local law. Even if India signs and ratifies an international
agreement, it can’t be imposed in Indian courts unless Parliament enacts a law to provide it
with domestic effect. Article 253 is the instrument that allows Parliament to create such
legislation, even when the subject matter is generally classified under the State List within the
Constitution.
KEY FEATURES OF ARTICLE 253:

1. It negates the distribution of powers as described in Article 246 22 and Schedule VII23
   .
2. Parliament is allowed to legislate on any matter, including those within the State List, if the
   intention is to implement an international agreement or decision.
   JUDICIAL INTERPRETATION
3. Magan bhai Ishwar bhai Patel v. Union of India (196924)
   ➤ The Incomparable Court asserted that settlements are not self-executing.
   ➤Article 253 allows Parliament to create laws to meet international obligations—even if they
   are categorized under the State List.
4. Jaunty George Varghese v. Bank of Cochin (1980)25
   ➤ The court ruled that international customs cannot take precedence over domestic law unless
   Parliament legislates under Article 253.
   So, Are treaties binding in nature?
   Internationally: Yes, once India signs and ratifies a treaty, it is required to adhere to it under
   international law.

22 The Constitution of India, art. 246.
23 The Constitution of India, Schd VII.
24 Supra note 2 at 1.
25 Supra note 3 at 1.

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Domestically: Not unless a law is enacted under Article 253.
ROLE OF JUDICIARY IN APPLYING INTERNATIONAL LAW
Indian courts predominantly do not apply international law directly; however, they have
consistently employed it as a guiding or interpretative instrument, particularly in the absence
of explicit domestic legislation. In instances where there is no conflict between a treaty and
prevailing Indian law, courts are willing to grant legal recognition to international obligations.
This flexible and dynamic approach enables the judiciary to uphold international standards,
especially in fields such as civil rights, gender equality & environmental protection, even in
the absence of specific legislation.

1. People’s Union for Respectful Freedoms (PUCL) v. Union of India26
   In this instance, the SC highlighted issues linked to phone tapping & the right to privacy. The
   Court referenced the ICCPR which India has ratified to interpret Article 21 of the Constitution27
   (Right to Life and Personal Liberty).The Court determined that international norms, although
   not directly enforceable, can be employed to bolster fundamental rights, especially in situations
   where domestic law is silent or underdeveloped.
2. Gramophone Company of India Ltd. v. Birendra Bahadur Pandey28
   Implications and distribution of copyrighted materials, the Court dealt with a situation
   involving an international treaty—The Berne Convention. The Court observed that:
   “The comity of nations necessitates that the principles of international law may be enforced
   within domestic law even in the absence of explicit legislative approval, provided they do not
   contradict the laws of the land.”29
   .

BROADER LEGAL APPLICATION OF UNIVERSAL STANDARDS
In a manner detached from specific cases, Indian courts have referenced international norms.

1. Human Rights Law:
   26 AIR 2003, SC 2363.
   27 The Constitution of India, art. 21
   28 AIR 1984 SC 667.
   29 Ibid.

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The courts have frequently invoked International Human Rights Treaties (such as the
ICCPR30 & CEDAW31) to interpret Articles 14, 19, and 21 of the Constitution 32in a
progressive manner.

2. Gender Equality:
   Vishaka v. State of Rajasthan33 SC referred to CEDAW to establish guiding principle
   on sexual harassment at workplace, given the nonappearance of relevant Indian
   legislation at that stretch.
3. Environmental Law:
   T.N. Goda Varman Thirumulpad v. Union of India34
   Judicial bodies have invoked international env. principles and standards, with
   “Precautionary Principle” & “Sustainable Development,” in Public Interest Litigations
   (PILs) related to environmental protection35
   .

ICJ JUDGMENTS AND THEIR AFFECT ON INDIA

ICJ aids as the essential judicial body of UN, recognized by the UN Charter. It resolves
disagreements between nations and offers suggested views on legal matters referred by
legal UN bodies & dedicated agencies. As a signatory of the ICJ Statute, India
recognizes its jurisdiction under specific conditions; however, the domestic
enforceability of ICJ rulings within India presents intricate issues within its dualist legal
framework36
.

Are ICJ Judgments Authoritative?

30
“International Covenant on Civil and Political Rights, 1966, adopted on 16 Dec. 1966 entered into force on
23rd March 1976, 999 UNTS 171”.
31 “Convention on the Elimination of All forms of Discrimination Against Women, adopted on 18th Dec. 1979,
entered into force on 3 Sept. 1981, 1249 Unts 13”
32 The Constitution of India, art. 14, 19& 21.
33
Supra note 4 at 1.
34 AIR 1997 SC 1228
35 T. N Goda Varman Thirumulpad v. Union of India, AIR 1997 SC 1228
36 Contentious cases organized by state, available at: INTERNATIONAL COURT OF JUSTICE ( Last visited
on 25th June, 2025)

9
Article 94(1) [UN CHARTER]:
“Each Member of the United Nations undertakes to comply with the decision of the
International Court of Justice in any case to which it is a party.37”
The decisions by ICJ are considered official only in relation to the entities engaged in
the conflict and exclusively for that specific instance. However, it is central to note that
ICJ judgments hold authority under international law, but they do not automatically
carry the same weight under Indian law.
Given that India adheres to a dualist legal framework, ICJ decisions can’t be imposed
directly in domestic courts, unless there’s local legislation in place to implement them
or the government takes action based on those decisions.

ICJ Cases Including India

1. Kulbhushan Jadhav Case (India v. Pakistan), 201938
   India approached the ICJ after Pakistan sentenced Indian citizen Kulbhushan Jadhav to
   death on charges of espionage.

India argued that Pakistan had violated the Vienna Convention on Consular Relations
39 by denying consular access. The ICJ ruled in Favor of India, determining that
Pakistan had infringed upon Article 36 40of the VCCR.
The Court instructed Pakistan to review and reconsider the conviction and to grant
consular access to Jadhav.

Impact:
India leveraged this ruling to exert diplomatic pressure on Pakistan. However, the
enforcement of the ICJ’s judgment remained contingent upon Pakistan’s willingness to
comply, as ICJ rulings do not possess an automatic enforcement mechanism. In India,
while the judgment was acknowledged and publicly referenced, no domestic legal

37 Charter of the United Nations,1945, art. 94(1)
38 Supra note 5 at 2.
39 Vienna Convention on Consular Rights, adopted on 24th Apr. 1963, entered into force on 19Mar. 1967, 596
UNTS 261.
40 VCCR art. 36

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measures were activated, reinforcing the notion that such decisions are not self-
executing.

2. Marshall Islands v. India
   Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race
   and to Nuclear Disarmament 41

The ICJ dismissed the case on grounds of insufficient evidence to establish a legal
dispute, and therefore did not address the substantive issues.

Impact:
Although case did not yield any direct legal consequences for India, it highlighted the
limitations of ICJ jurisdiction, which is contingent upon the consent of states, and
demonstrated how India strategically manages its international legal engagements.

BROADER IMPACT OF ICJ JUDGEMENTS IN INDIA

Despite the fact that judgments from the ICJ aren’t directly applicable within Indian
courts, they hold significant political, legal, and diplomatic weight. The broader impact
of these judgments on India can be understood through the following key aspects:

1. Strengthening India’s International Image
   India’s participation in ICJ proceedings Kulbhushan Jadhav’s Case, for example,
   illustrates its commitment to upholding a rule-based international order. Engagement
   with the ICJ helps bolster India’s reputation as a law-abiding, responsible global power
   that believes in the peaceful resolution of disputes.
2. Diplomatic Utility
   Even when not binding domestically, ICJ rulings can provide India with robust
   diplomatic tools to negotiate or exert pressure on other nations. Eg: Jadhav case, ICJ
   ruling assisted India for globally shaming Pakistan and demanded that consular rights
   be respected.

41 (2016) ICJ Rep 255

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3. Influence on Domestic Policy and Legal Reforms
   While ICJ judgments and international legal standards may not be automatically
   binding, they often influence Indian courts, policymakers and legislators. This can lead
   to legal reforms, particularly in sectors pertaining to human rights, environmental law
   & consular practices.
4. Legal Reference and Interpretation
   Indian courts may refer to ICJ decisions as persuasive authority when interpreting
   constitutional rights or international law obligations. Although not binding, such
   references add credibility and an international perspective to domestic judgments.
5. Limitations of Enforcement Highlight the Need for Reform
   The non-binding nature of ICJ decisions under India’s dualist framework also points to
   a gap between international law and domestic enforcement. This has sparked
   discussions around:

Necessity for Change

Change does not roll in on the wheels of inevitability, but comes through continuous
struggle.”
— Dr. Martin Luther King Jr.42
The non-binding characteristic of ICJ rulings within India’s dualist system highlights a gap
between international law and domestic enforcement. This has initiated discussions regarding:
Whether India requires a formal law for treaty implementation. The need for increased
parliamentary oversight in matters related to treaties.
CONCLUSION
In the dynamic landscape of international collaboration, treaties serve a crucial function in
promoting legal consistency and shared accountability among nations. Nevertheless, India’s

42 Martin Luther King Jr., Stride Toward Freedom: The Montgomery Story (Harper& Row, 1958)123.

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adherence to such treaties is influenced by its dualist legal framework, which distinctly
separates international law from domestic law. Consequently, while India may sign or ratify
treaties on the international stage, these obligations do not automatically gain enforceability
within its borders unless Parliament passes enabling legislation. This arrangement is founded
on constitutional principles such as parliamentary supremacy and federalism, which emphasize
democratic consent over executive authority.43
WAY FORWARD: KEY SOLUTIONS & INSTITUTIONAL REFORMS
Establish a Treaty Implementation Commission

1. A dedicated institutional mechanism should be established to:
2. Monitor India’s treaty obligations.
3. Collaborate with ministries for legal drafting.
4. Oversee delays in legislative action following ratification.
5. Parliament may enact a general law permitting:
6. Automatic incorporation of specific categories of treaties (e.g., human rights,
   environment).
7. Parliamentary review and endorsement within a specified timeframe.
8. Mandatory Timeline for Legislation after Ratification
   Implement policies that:
9. Establish a legislative deadline (e.g., within 1–2 years of ratification).
10. Hold ministries accountable to Parliament for their progress.
11. Strengthen Executive-Legislature Coordination
12. Facilitate pre-ratification discussions in Parliament for significant treaties.
13. Ensure that the executive engages with stakeholders and legal experts prior to
    committing India internationally.
14. Judicial Training & Legal Education
15. Integrate international law more thoroughly into judicial academies and law schools.
16. Promote the development of consistent norms by courts for referencing international
    law.

43 “V.G. Hegde, “ Relationship between International Law and Municipal Law: A study with reference to India”
(1994) 34 Indian JIL 215”

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9. Enhance India’s Global Legal Standing
   A robust treaty implementation framework will:
10. Enhance India’s credibility in international forums (UN, WTO, ICJ).
11. Position India to spearhead legal reforms in the fields of networking rights, data
    protection & climate change.
    As the eminent universal legal theorist Hans Kelsen observed, “International law is the basic
    norm of the legal order of the world.” By aligning its domestic legal framework with its
    international obligations, India can emerge as a model constitutional democracy that not only
    makes promises but also fulfils them on the global stage.44

• JUSTICE KRISHNAN IYER
  “International instruments can be read into domestic law when they are not inconsistent with
  it.”45

44 Hans Kelsen, Pure Theory of Law (2nd edn, University of California Press 1967)216
45 Supra note 3 at 14