International Law and Human Rights
International Law tests sources, responsibility and the domestic effect of international norms; Human Rights questions connect treaties to Indian constitutional and statutory machinery.
Sources and obligations
- ICJ Statute, Article 38(1): treaties, custom, general principles, and judicial decisions and teachings as subsidiary means. Custom requires state practice and opinio juris (North Sea Continental Shelf, 1969); a persistent objector is exempt.
- VCLT, 1969: pacta sunt servanda (Art. 26); interpretation under Art. 31 by ordinary meaning, context and object; rebus sic stantibus (Art. 62) is narrow; jus cogens (Art. 53) voids conflicting norms.
- State responsibility: ILC Articles, 2001 - attribution, breach and reparation (Chorzów Factory). Countermeasures are limited by proportionality and the prohibition on force.
Human rights in the Indian order
- India is party to the ICCPR and ICESCR, but treaties are not automatically enforceable; Article 253 permits implementing legislation, and Article 51(c) directs respect for international law.
- Courts use conventions to inform Articles 14 and 21 (Jolly George Varghese v. Bank of Cochin, 1980; Vishaka, 1997).
- The Protection of Human Rights Act, 1993 (amended 2019) establishes the NHRC and State commissions, with limited enforcement powers.
Worked example
A treaty requires a state to criminalise a practice, but Parliament has not legislated. A petitioner claims direct enforceability. The correct analysis: the treaty binds India internationally, but domestic courts will not enforce it as law without legislation; it may inform constitutional interpretation where text is ambiguous, and non-compliance may attract international responsibility.
Traps
- Treating the UDHR as a binding treaty.
- Confusing jus cogens with customary law generally.
- Assuming Article 51(c) is enforceable in court.