Recent events such as India’s treaty on the nuclear issue with the United States and earlier treaties such as India signing the Marrakesh Treaty in 1995 and its implications for India or the earlier treaty between India and the former USSR have raised the question of who has the right to enter into treaties under the present constitutional scheme and

to what extent the people of this country have a role to play in India’s signature or accession to a treaty. Currently, it is the executive that has the final say on whether to enter into a treaty or not. Parliament only comes into the picture if any laws are to be changed, or the treaty requires some other constitutional or legal change. This powerful position accorded to the executive is a colonial legacy and is on the lines of that obtaining in Britain today. In certain countries where treaties automatically become a part of the law and affect existing laws, legislative consent may be required before a treaty can be entered into. A third option could be to require popular consent to a treaty through a referendum before it is entered into.

In India, the Parliament has been constitutionally granted the power to make a law governing the exercise of the treaty making power. Till date no such law has been passed that could have indicated the steps that would need to be taken before treaties were entered into and that could have paved the way for prior permission or subsequent approval by the Parliament for treaties. In this situation, there have been demands from several quarters that Parliament enact a law stipulating the manner in which treaty-making powers should be exercised. In addition, several people’s organizations have also raised the demand that the Constitution be amended to permit of a referendum by the people before certain important treaties which affect India’s future are entered into. Both these changes would definitely be in the direction of increasing the citizen’s role in the shaping the direction of economic, political, social and military changes in the country.

Lok Raj Sangathan invites you to participate in this important debate on who has the right to ratify international agreements. The information given below is for your update and would help you to form your opinion and take a stand.

The following excerpts are taken from the Consultation Paper prepared for the National Commission to Review the Working of the Constitution – Consultation Paper by P.M. Bakshi. Available on the internet at http://lawmin.nic.in/ncrwc/finalreport/v2b2-3.htm

"Treaties are of two kinds: first category treaties are those which become binding as a result of signatures affixed at the completion of the negotiations. Examples of this kind of treaties are simple bilateral agreements. Then there are treaties which require a further step to be taken after the text has been established by signature before the treaty will take effect, whether by way of ratification or by legislation, as the case may be. As a matter of fact, multi-lateral treaties routinely provide for ratification in case of those who have signed the treaty and for accession in case of those who have not signed the treaty."

The questions we must address therefore are: to whom does this power belong – whether to the Executive or to the Parliament? and if it is the power of the Executive, whether it is subject to Parliamentary control or supervision? What is the impact of treaty-making power conferred by entry 14 of List I of the Seventh Schedule and Article 253 of the Constitution upon the federal structure which we have adopted for ourselves?

Attorney General for Canada v. Attorney General for Ontario (1937 a.c. 326 = air 1937 p.c…..). It said:

“It will be essential to keep in mind the distinction between (1) the formation, and (2) the performance, of the obligations constituted by a treaty, using that word as comprising any agreement between two or more sovereign States. Within the British Empire there is a well-established rule that the making of a treaty is an Executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law…

Parliament, no doubt, has a constitutional control over the Executive; but it cannot be disputed that the creation of the obligations undertaken in treaties and the assent to their form and quality are the function of the Executive alone. Once they are created, while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default. In a unitary State whose Legislature possesses unlimited powers, the problem is simple. Parliament will either fulfill, or not, treaty obligations imposed upon the State by its Executive. The nature of the obligations does not affect the complete authority of the Legislature to make them law if it so chooses.”

From a reading of Article 246 along with the said Entries, it is obvious that the Parliament is competent to make a law with respect to the several matters mentioned in the above entries. In other words, treaty-making is not within the exclusive competence of the Executive. It is squarely placed within the legislative competence of the Parliament. By virtue of Article 73 of the Constitution, however, the Executive power of the Union extends, in the absence of parliamentary legislation, to the matters with respect to which the Parliament has power to make laws subject, of course, to constitutional limitations. It is well known that the Parliament has not so far made any law regulating the procedure concerning the entering into treaties and agreements nor with respect to their implementation. Equally clearly, no law has been made regulating the manner in which the Government shall sign or ratify the international conventions and covenants. The resulting situation, unfortunately, is that it is left totally to the Executive to not only enter into treaties and agreements but also to decide the manner in which they should be implemented, except where such implementation requires making of a law by Parliament. And the fact of the matter is that once the Executive Government enters into a treaty, it would be, ordinarily speaking, quite embarrassing for the Parliament to reject the treaty – more so in view of the provisions of the Vienna Convention on the making of Treaties which though not yet ratified by India (according to the information given by the concerned Ministries) indicates certain consequences flowing from the conclusion of a treaty.

It bears repetition to say that under our Constitution, treaty-making power is not vested in the Executive or the President – as has been done in some other Constitutions. It is squarely placed within the domain of the Parliament. Theoretically speaking, Parliament can by making a law prohibit the Executive to enter into a particular treaty or a particular kind of treaties; similarly, it can also direct the Executive to enter into a particular treaty or may disapprove or reject a treaty signed and/or ratified by the Executive. It is a different matter that Parliament has not chosen to make a law in that behalf, leaving the Executive totally free to exercise this power in an unfettered and, if I may say so, in an unguided fashion.

Self executing treaties Maganbhai Ishwarbhai Patel v. Union of India (1970) 3 SCC 400 = AIR 1969 SC 783). M. Hidayatullah, Chief Justice, prefaced his discussion (para – 24). In some jurisdictions, the treaty or the compromise read with the Award acquires full effect automatically in the Municipal Law, the other body of Municipal Law notwithstanding. Such treaties and awards are ‘self-executing’. Legislation may nevertheless be passed in aid of implementation but is usually not necessary.”

Shah J. in his separate but concurrent opinion in Maganbhai: “The effect of Article 253 is that if a treaty, agreement or convention with a foreign State deals with a subject within the competence of the State Legislature, the Parliament alone has, notwithstanding Article 246(3), the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body. In terms, the Article deals with legislative power; thereby power is conferred upon the Parliament which it may not otherwise possess. But it does not seek to circumscribe the extent of the power conferred by Article 73. If, in consequence of the exercise of executive power, rights of the citizen or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation : where there is no such restriction, infringement of the right or modification of the laws, the executive is competent to exercise the power.”

In P.B.Samant v. Union of India (1994 Bombay 323). The facts and the ratio of the judgment of the Bombay High Court deserve a closer look inasmuch as it deals directly with the issue discussed herein.

It was a petition filed by certain public-spirited individuals seeking the issuance of a writ of mandamus restraining the Union of India from entering into final treaty relating to Dunkel proposals without obtaining sanction of the Parliament and State Legislatures. The contention was that in exercise of its executive power, the Union Government cannot trench upon the matters in the State list. It was submitted that Dunkel proposals dealt with subjects like agriculture, irrigation, cotton and other matters which are within the exclusive domain of the states. It was submitted that the said proposals will also affect the maintenance of roads, bridges, communication etc. which too are in the state list. It was therefore contended that unless the consent of the states is obtained, the Union Government cannot enter into any agreement on the said proposals which are being discussed as part of Uruguay Round of Trade Negotiations under the auspices of GATT.

It is thus evident that any treaty or international agreement entered into by the Union Executive beyond its power (i.e. power conferred by Article 73) or in violation of the constitutional limitation indicated hereinbefore, is only not binding on India, it is unconstitutional and inoperative. To be more specific, any treaty signed by the Union Executive concerning or affecting the entries in the State List or the Concurrent List in the Seventh Schedule to the Constitution would be incompetent and unenforceable since its executive power does not extend to matters in State or Concurrent List. Also because, no law has been made by the Parliament, as contemplated by the proviso to Article 73(1), extending the executive power to State or Concurrent List in the matter of treaty-making, assuming that Parliament can do so even in respect of matters in State List

 

Australia

It would be appropriate to begin with Australia since it is not only a common law country but also a federation. The Australian Constitution Act, 1900 provides for distribution of powers between the Federal Government and the States. Under Section 61 of the Constitution, the power to enter into treaties is an Executive power. Even so, the Prime Minister of Australia announced in the Parliament in the year 1961 that henceforward the Government will lay on the table of both Houses texts of the treaties signed for Australia, whether or not ratification is required, as well the texts of those treaties to which the Government is contemplating accession. It was stated that the Government would not, as a general rule, proceed to ratify or accede to a treaty until it has been laid on the table of both Houses for at least 12 sitting days. Be that as it may, a practice has developed in that country whereunder Australia would not ratify a treaty or accept an obligation under the treaty until appropriate domestic legislation is in place in respect of treaties where legislation is necessary to give effect to the treaty obligations. Several proposals have been made by groups of parliamentarians to provide for greater overview by Parliament of the treaty-making power and also to identify and consult the groups which may be affected by the treaty. All of them are strongly critical of the lack of transparency in the treaty-making process. One of the NGOs in that country, namely, National Farmers Federation has suggested that not only the treaties should be laid on the table of the House before they are finalized but the text of the treaty should be accompanied by a statement clearly setting out the important treaty obligations being undertaken by the country thereunder, what effect the treaty will have on the Australian national interests including economic, social and environmental and the extent of consultation already held by affected groups and so on – impact assessment statement, if one can call it, for short.

In May, 1996, the Foreign Minister made a statement to the House of Representatives outlining a new treaty-making process. According to this, the treaties will be tabled at least for 15 sitting days, after signature but before they are ratified, to allow for parliamentary scrutiny. This arrangement was to apply to both bilateral and multi-lateral treaties and to their amendments. Where however urgent action has to be taken, a special procedure was devised under which the Agreements will be tabled in the House as soon as possible with an explanation of reasons for urgent action. Further, the States will be consulted before entering into treaties and any particular information about the treaties will be placed before the Premiers and Chief Ministers’ Department. The Government has also agreed in principle to append a statement indicating the impact of the proposed treaty to the papers laid before the House. A joint Standing Committee on treaties was established comprising Members of both Houses and consisting of Federal and State Officers who shall meet twice every year and consider and report upon the treaties tabled before the House.

In the year 1997, a Bill was introduced in the Federal Legislature mainly with a view to partially affirm and partially supersede the decision of the Australian High Court in MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V. TEOH (1995) 183 CLR 273. The said decision enunciated two propositions: (a) that under the Australian constitutional system, a treaty entered into by the Federal government does not become a part of domestic law and is not enforceable by courts until legislation is undertaken by competent legislature in that behalf and (b) a treaty or an international Convention/Covenant signed/ratified by the Federal government gives rise to a legitimate expectation at law that could form the basis for challenging an administrative decision. The Bill was intended to affirm (a) and to over-rule (b). It is not known whether it has been made into an Act

 

France

The power to conclude treaties is vested in the President of the Republic by virtue of Article 52 of the French Constitution. The President not only negotiates but also ratifies the treaties on his own. The role of the Parliament appears to be quite restricted. According to the said article, the Parliament comes into picture only in the case of certain types of treaties and that too after the terms of the treaty have been decided upon. Even then, the Parliament’s power is only to approve or reject its ratification. The types of treaties contemplated in Article 52 include peace treaties, trade treaties, human rights treaties and treaties ceding, exchanging or adding territories. Article 55 of the French Constitution indeed provides that concluded treaties do not require implementing legislation in order to be enforceable. Once a treaty has come into/force, it overrides any conflicting domestic legislation even if such legislation happens to be passed subsequent to the ratification of the treaty.

 

United States of America

Article II, Section 2 of the U.S. Constitution, which deals with the powers of the President, states, inter alia, that the President is empowered “by and with the Advice and consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur …” The President initiates and conducts negotiations of the treaties and after signing them, places them before Senate for its “Advice and Consent”. The two famous instances in which Senate refused to ratify or approve the treaty signed by the President are (a) the Treaty of Versailles concluded at the end of World War I and (b) Comprehensive Test Ban treaty on nuclear tests.. President Wilson, who was indeed the moving spirit behind the Versailles treaty, signed the treaty together with allied nations but when it was presented to the Senate, it rejected the same – effectively withdrawing U.S.A. from European affairs until the developments in Germany under Hitler brought it back into it. Even the Comprehensive Test Ban on nuclear tests (CTBT) was the handiwork of the President Clinton and his predecessors. In view of this constitutional position, a practice has developed in that country according to which, the Senators i.e. important persons among them, are associated with treaty making from the very beginning so that it may be easier for the President to get the treaty ratified later by the Senate.

A distinction is made in the U.S.A. between treaties and agreements. [It is interesting to note that the Vienna Convention on the Law of Treaties applies only to treaties and not to International Agreements (Article 2)]. So far as the treaties are concerned, they are required by the Constitution to be submitted to Senate for approval/ratification. But, so far as the agreements and particularly, those that are known as Executive agreements, are concerned, they are entered into and signed by the President in exercise of his Executive power. Since such agreements are not considered treaties. The type of agreements so contemplated are those relating to foreign relations and military matters which do not affect the rights and obligations of the citizens. In so far as the trade agreements are concerned, a different procedure is evolved. Since the Congress has the constitutional authority to regulate commerce with foreign nations under Article 1 of the Constitution, such treaties are subject to ratification by both Houses but only by a simple majority.

With respect to the effect of the treaties, Article VI Section 2 of the Constitution expressly provides that “All treaties made or which shall be made with the authority of the United States, shall be the supreme law of the land and the judges in every state shall be bound thereby, anything in the Constitution or Laws of any state to the contrary notwithstanding.” This is a fundamental departure from the British practice. The treaty not only overrides any federal law of the country but also overrides any provision in the Constitution of the State or the laws made by any State Congresses to the contrary.

Argentina and Mexico, it appears, follow the United States pattern.

 

Switzerland

The legal position in Switzerland is distinct altogether. The Executive authority in Switzerland is exercised by Federal Council headed by the President and the Federal Chancellor. The Federal Council has seven members elected at a joint meeting of the two Houses of Parliament. The Federal Council negotiates and signs the treaties. Once it is negotiated and signed, it is ratified/finalized in four different ways :

  1. In some cases Parliament authorises the Federal Council in advance not only to sign a treaty but also to bring it into force.
  2. There are treaties which require approval of the Parliament before they become enforceable.
  3. A treaty may be subjected to an optional referendum as provided for in Article 89(3) of the Constitution. The categories of treaties subjected to this procedure are treaties which are effective for an indefinite period, without the possibility of denunciation.
  4. In some cases, the agreement has to be approved by a compulsory referendum as provided for in Article 89(5). The agreements subjected to this procedure are those which provide for adherence to supra-national organizations and organizations for collective security.

Thus there are four different processes for concluding a treaty in Switzerland depending upon the nature of treaty. The advantage of this system is that it allow for adequate scrutiny of those agreements which have significant implications for the nation and affect the rights of the citizens. Of course, in the case of urgent and sensitive treaties, an alternative method is provided where the Parliament can only denounce the agreement if it does not agree with it, but there is no question of approval or ratification by the Parliament.

 

Canada

The Canadian Constitution Act, 1982 (British North-American Act, 1867) does not contain a specific provision with reference to external affairs. However, following the British practice and particularly the decision of Privy Council in ATTORNEY GENERAL FOR CANADA Vs. ATTORNEY GENERAL FOR ONTARIO referred hereinbefore, the Federal Government exercises the exclusive power to enter into treaties on behalf of Canada.

The peculiar feature of the Canadian Constitution is that even the Provinces have the power to enter into international agreements, which, it is said, are not binding in international law. The Government normally seeks the approval of the Parliament before ratifying an important Treaty though there is no such constitutional obligation. Approval is given in the form of resolution by both Houses of Federal Legislature. The Constitution also requires that any legislation required to implement a treaty can be enacted only by the provinces and it is because of this requirement that a good amount of consultation with the provinces is undertaken before concluding a treaty.


United Kingdom

The legal position in U.K. has been succinctly set out in the decision of the Privy Council aforementioned. Indeed the ratio of the said decision has been recently affirmed by the House of Lords in J. H. RAYNER LIMITED Vs. DEPT. OF TRADE AND INDUSTRY (1990 (2) A.C. 418) wherein has been observed :

“The Government may negotiate, conclude, construe, observe, breach, repudiate or terminate a treaty. Parliament may alter the laws of the United Kingdom. The courts must enforce those laws; judges have no power to grant specific performance of a treaty or to award damages against a sovereign state for breach of a treaty or to invent laws or misconstrue legislation in order to enforce a treaty.”

So far as the effect of concluded treaties on the domestic law is concerned, the English law is at variance with the law in the United States. Generally accepted principle in English law is that in case of conflict between the British statutes and the provisions of a treaty, the former prevails. This is supposed to be a principle of constitutional law. Where, however, the Parliament undertakes legislation to give effect to an international convention, it has been held that the courts must presume that Parliament intended to fulfill the international obligations undertaken by the States.

by T.S. Sankaran, Honorary Chairperson, LRS and former Additional Labour Secretary, GoI

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