Treaties on Trade and Investment and

the Indian Legal Regime: Should We

Mind the Gap?
Prabhash Ranjan∗

This article looks at the relationship between trade and investment treaties signed by India
and the Indian federal domestic legal regime in light of existing constitutional provisions that
give the right to the central executive to negotiate and sign international treaties. It focuses on
trade and investment treaties, rather than all international treaties signed by India, because
the former treaties impose relatively more onerous obligations that constrain the national
policy space. The article challenges the present practice in India, where international treaties
on trade and investment bind India without undergoing any parliamentary approval or
ratification. This can occur because the Indian Constitution is silent regarding the status of
such international trade and investment treaties within the domestic legal regime, especially
in cases where these treaties have not been transformed into a domestic legislation. The article
also discusses those situations where an Indian law could conflict with an obligation imposed
by an international trade and investment treaty that has not been transformed into a domestic
legislation. Further, the Indian Constitution is also silent on whether the central executive can
negotiate and sign treaties on subjects given in the State List, or whether the power to sign
international treaties is limited to subjects given in the Union List. The present practice,
whereby the central executive signs trade and investment treaties on State subjects without
consulting the States, affects the constitutional policy space of the States and undermines the
federal polity. The article concludes by stressing the need to develop a new law, clearly
stipulating how the executive should go about the business of signing trade and investment
treaties.

At international law, treaties may be concluded by countries in virtually

any manner the countries wish. In other words, there is no standard
procedure or process prescribed in international law for the formation of a
treaty. How a treaty is to be formulated will therefore generally depend on
the intention and agreement of the states party to that treaty (Shaw,
2003: 815). Who signs a treaty on behalf of the state and who has the
capacity to negotiate and form a treaty on behalf of the state is governed
by the municipal law of the state party to that treaty. For instance, in the
United Kingdom (UK) the treaty-making power is with the Crown,1
whereas in the United States (US), the treaty-making power vests in the
President with the advice and the consent of the Senate, and with the
concurrence of two-thirds of the Senators (Henkin, 1980: 954). Other

Electronic copy available at: http://ssrn.com/abstract=1601789

2009] Treaties on Indian Trade and Investment 57

related issues, such as who has the power to ratify the treaty, are again an
issue of the domestic law of a country and not a question of international
law.
This article probes these complex questions in the context of India,
analysing different facets of the relationship between international
treaties signed by the Indian executive (the central executive) and the
Indian domestic legal regime in light of the existing constitutional
arrangement relating to the negotiating and signing of international
treaties, the status of international treaties signed by India in the
domestic legal regime, and the implications of the present system of
negotiating and signing international treaties for India’s federal polity.
This article looks at such relationship in the context of trade and invest-
ment treaties signed by India, such as the World Trade Organization
(WTO) treaty,2 regional and bilateral trade treaties and international
investment treaties, rather than the broader universe of international
treaties.
The article focuses on trade and investment treaties for several
reasons. First, trade and investment treaties impose obligations that are
more onerous and specific in nature, have a wider impact on the economy
and society, and also often trigger changes in the domestic legal regime
constraining the policy space of the state. For instance, the WTO treaty
covers a wide array of subjects imposing obligations that have impli-
cations for all the three sectors of the economy – agriculture, manu-
facturing and services – and hence imposes limits on the regulatory
autonomy of states. These obligations are more onerous when compared to
the obligations imposed by other kinds of international treaties, like the
human rights treaties or environmental treaties where countries have
greater discretion in interpreting these treaties and deciding how to
implement the obligations imposed by these treaties.
Second, the pace with which India is signing trade and investment
treaties is also noteworthy. India was a founding member of the WTO in
1995. Post-1995, India has already signed, or is in the process of
negotiating, more than 20 Regional Trade Agreements (RTAs) with other
counties or trade blocks, including the European Union (EU) and the
Association of South East Asian Nations (ASEAN).3 It has been argued
that one of the important objectives that India seeks to achieve through
RTAs in Asia is to extend her influence in the region through economic
diplomacy (Farasat, 2008: 435). The prominent RTAs that India has so far
signed are the India-Singapore Comprehensive Economic Cooperation
Agreement (CECA), which covers trade in goods and services and also
covers investment liberalisation; the India-ASEAN Framework Agree-
ment, aimed at liberalisation of trade in goods and services in a phased

Electronic copy available at: http://ssrn.com/abstract=1601789

58 Asian Law [Vol 11

manner by 2016; the Agreement on South Asian Free Trade Area

(SAFTA), which came into effect from 1 July 2006; the India-Sri Lanka
Free Trade Agreement, which came into force in March 2000; and the
India-Thailand Framework Agreement for establishing a Free Trade Area
with Thailand (Farasat, 2008: 437). An important recent development was
the conclusion of the Agreement on Trade in Goods (TIG) on 28 August
2008 (Pal and Dasgupta, 2008: 8).
Similarly, India is signing International Investment Agreements
(IIAs) at a rapid pace. There are investment treaties signed by India both
bilaterally or regionally and they include chapters on investment that are
negotiated and signed as part of a regional or bilateral trade agreement,
or as part of a comprehensive economic cooperation agreement. India
signed its first IIA in 1995, with the UK. Since 1995, India has signed IIAs
with 63 countries, of which 50 are already in force and 13 are in the
process of being enforced. Negotiations towards signing IIAs with another
41 countries are underway (Ranjan, 2008: 211).4 According to the latest
press release issued by the Indian Finance Ministry, the number of IIAs
that India has entered into has increased from 63 to 70 from March 2007
to May 2008, with the latest being signed with Mexico5 and Brunei.6 These
numbers point towards the vigour with which India is pursuing its IIA
program and the importance it now attaches to foreign investment for
economic development.7 By signing IIAs, India is undertaking treaty
obligations on foreign investment and binding itself to the growing body of
international norms on international foreign investment law. These
numbers also point to the significance of these treaties in the Indian polity
and put forward a strong case for analysing these treaties in the context of
the Indian Constitution, and examining their relationship with the
national laws.
A further important point to note is that the central executive
requires the active cooperation and support of States to implement many
of the obligations imposed by the trade and investment treaties. This is
because the treaties cover many issues which fall within the State List
such as agriculture8 and so cooperation and support from the States is
extremely important. This critical point must guide any analysis of the
relationship between trade and investment treaties and national laws in
light of the constitutional provisions.
This article is organised as follows. The first section discusses the
relevant constitutional provisions on international treaties signed by
India. The next section argues that international treaties signed by India
are heterogeneous in nature, and so different treaties impose different
obligations. The following part examines the status of trade and invest-
ment treaties signed by the central executive that have not been enacted
2009] Treaties on Indian Trade and Investment 59

by the Indian Parliament (or central legislature) for the domestic regime
and also for India’s international obligations. The penultimate part scru-
tinises the implications for treaties on trade and investment signed by the
central executive for India’s federal character. The final part concludes.

Indian Constitutional Provisions

The Constitution of India bestows power on the central legislature to
legislate on matters related to treaties and agreements with foreign
countries. This power is given to Parliament in Entry 14 of the Union List
contained in the Constitution,9 which mentions ‘entering into treaties and
agreements with foreign countries and implementing treaties, agreements
and conventions with foreign countries’. Entry 14, apart from giving the
power to legislate on matters related to treaties also gives the power to the
central legislature to enact laws to implement these treaties, agreements
and conventions. These powers given to the central legislature extend to
the central executive by virtue of art 73 of the Constitution, which states
that:
Subject to the provisions of this Constitution, the executive power of the
Union shall extend to the matters with respect to which Parliament has
power to make laws.

In other words, the central executive’s power extends to all the matters
given in the Union List. Reading art 73 and Entry 14 together clearly
implies that the central executive has the power to enter into treaties and
agreements with countries.
Further, art 253 of the Indian Constitution provides that:
Notwithstanding anything in the foregoing provisions of this Chapter, the
Parliament has power to make any law for the whole or any part of the
territory of India for implementing any treaty, agreement or convention
with any other country or countries or any decision made at any inter-
national conference, association or other body.

In other words, art 253 has the effect that, in order to implement
international treaties, the central legislature is granted the power to make
laws on subjects given in the State List. Article 253 thus constitutes an
exception to the general rule that the central legislature cannot legislate
on subjects given in the State List. There are, however, a few important
points that need to be noted about art 253. First, it is important not to
misconstrue art 253 as a ratifying mechanism for the international
treaties signed by the central executive. Second, art 253 is an enabling
provision that is pressed into action if the implementation of a treaty
requires making a law on a subject in the State List. If the signing of an
60 Asian Law [Vol 11

international treaty does not require any change in law, there is no need
to invoke art 253. Moreover, art 253 is a post facto provision that only
becomes relevant after the central executive has signed a treaty.
In this context it is vital to note an important constitutional principle
in India according to which, if the implementation of the treaty does not
require changes in the existing domestic laws or the enacting of a new law
(whether on a subject given in the State List or Union List), the central
legislature has no role in the treaty-making process. Of course the central
legislature can always enact a law using the power given in Entry 14 to
decide how the international treaties will be negotiated and ratified by
India, but, at present, the central legislature has not done so. Therefore, if
a particular treaty does not require new legislation, the central legislature
has no role in the treaty-making process. The only parliamentary super-
vision available for the process of trade policy-making is through the Par-
liamentary Standing Committee on Commerce.10 This kind of supervision,
however, is inadequate, because these committees are not involved in the
process of trade policy-making in a comprehensive and regular manner
(see Dhar and Kallummal, 2007: 204–5). This can be seen from the fact
that the last report on trade prepared by the Committee on Commerce
was in 2005, before the 6th Hong Kong Ministerial Conference. After
2005, in spite of many developments in the Doha round of negotiations,
the Committee has not come out with any report on India’s overall
negotiating stand.11
Hence, art 253 on the law-making processes and activities of the
central legislature becomes important, or is activated, only after a treaty
has been negotiated and signed, a fact that underlines the important
difference between the formation of the treaty and its performance. Lord
Atkin in Attorney-General for Canada v Attorney-General for Ontario
[1937] AC 326 said that it is important to distinguish between the for-
mation and the performance of the obligations constituted by a treaty. It
was said that the rule is well established within the British Empire that
the making of a treaty is an action of the executive and the legislature
becomes involved only if the performance of the treaty requires legislative
action. Likewise, the Supreme Court of India, in Union of India v
Maganbhai Ishwarbhai, AIR 1969 SC 783, held that the Constitution has
no provision that requires the enactment of legislation as a condition of an
entry into an international treaty. It was held in this case that the central
executive is competent to represent the state in international matters, and
is competent also to incur obligations by signing international treaties
that are binding at international law.
It was also held in Union of India v Maganbhai Ish Warbhai, how-
ever, that the obligations that arise as a result of the international treaty
2009] Treaties on Indian Trade and Investment 61

signed by the executive will not be, on their own, binding on the Indian
nationals. In order to make them binding, the treaty will have to be
transformed into a domestic law by the central legislature. Hence, the role
of the parliament comes in when the international treaty signed by the
central executive of India has to be transformed into domestic law and not
otherwise. This doctrine of transformation reflects a positivist-dualistic
position (where international law becomes part of national law only if it
has been specifically transformed into domestic law) and is in contrast
to the doctrine of incorporation by which a rule of international law is
incorporated into national law simply because it is a rule of international
law and hence it can be enforced by the national court. This latter position
reflects the monist approach to international law, which looks at both
international law and national law as a unified concept.
Another important point to be made in respect of Entry 14 and
art 253 is that these provisions do not differentiate between international
treaties. In other words, the unstated, and seemingly inherent, assump-
tion of these constitutional provisions is that international treaties are a
homogenous group. Hence, regardless of whether treaties are bilateral,
regional or multilateral, or are about the environment, human rights or
economic matters, the Constitution does not draw a distinction between
them. It is important to state here that, in Re Berubari Union and
Exchange of Enclaves, AIR 1960 SC 845, the Supreme Court did mention
that treaties involving cession of territory could not be implemented
without constitutional amendment (Singh, 2001: 5), thus putting such
treaties in a different league to all others. Apart from this, however, there
is nothing in the Constitution or in judicial pronouncement differentiating
between international treaties signed by the central executive.
Before discussing the heterogeneous character of international
treaties, it is useful to discuss another provision of the Constitution
related to international treaties: art 15, which is part of the Directive
Principles of State Policy.12 Paragraph (c) of this Article provides that:
The state shall endeavour to foster respect for international law and
treaty obligations in the dealings or organised peoples with one another.

The objective and intent behind this provision is that India should respect
international law by fulfilling and complying with its international treaty
obligations as a responsible state in the comity of nations. This article has
been relied on by the Indian courts to interpret Indian laws in light of the
international treaties signed by India. For instance, art 51 has been relied
on to implement human rights instruments such as the United Nations
Declaration of Human Rights; the International Covenant on Civil and
Political Rights (ICCPR); and the International Covenant on Economic
Social and Cultural Rights (ICESCR) (Singh, 2008: 360). In State of
62 Asian Law [Vol 11

Kerala v Kesavananda Bharathi [1973] Supp SCR 1, for example, Sikri CJ

observed the following:
It seems to me that, in view of Article 51 of the directive principles, this
Court must interpret the language of the Constitution, if not intractable,
which is after all a municipal law, in the light of the United Nations
Charter and the solemn declaration subscribed to by India. (at para 169)

Thus, the principle that has been developed using art 51 is that, if there is
an international treaty that India has signed and if the provisions of this
treaty are not inconsistent with the Indian municipal law, then the treaty
provision concerned can be enforced by the Indian courts, as pointed out
earlier.
In sum, from the discussion on the Indian constitutional provisions
related to international treaties one can conclude, first, that art 73 gives
the central legislature and the central executive the power to enter into
international treaties. Second, a treaty entered into by the central
executive does not need to be ratified by the parliament for it to be binding
on India. Third, the parliament has the power to make a law on a subject
given in the State List in order to implement an international treaty.
Fourth, if the implementation of the international treaty requires changes
in the domestic laws, then the parliament has a role to play by enacting a
new law or amending an existing law. If the implementation of the
international treaty does not require any legislative change, then the
parliament of India has no role to play in treaty-making. Fifth, for an
international treaty to be binding on the people of India and to be enforced
in the Indian courts, it should have been transformed into domestic law by
an act of parliament, although Indian courts have developed a test
whereby an international treaty signed by India is enforceable in Indian
courts if it is consistent with the Indian law.

The Heterogeneous Nature of International Treaties

This section discusses the cardinal issue raised earlier in this article that
international treaties are not a homogenous group. The nature and
character of different treaties are different. Therefore the obligations
imposed by these treaties are also different.
It is first important to draw a distinction between trade and
investment treaties, such as the WTO treaty and the IIAs, and other
international law treaties. This difference can be understood at two levels.

Specific Nature of Obligations Imposed

As has been briefly mentioned in the introduction, many trade and
investment treaties impose specific obligations that may restrict the policy
2009] Treaties on Indian Trade and Investment 63

space of a signatory country. Hence, a country may have less flexibility in

interpreting these obligations than it would in the case of other inter-
national law treaties that impose broader obligations, allowing more
flexibility in determining how to give effect to them. This difference can be
understood by reference to the following examples. Most trade and
investment treaties impose the obligation of national treatment, which
implies that India cannot discriminate between imported goods and
domestically produced goods, or between foreign investment and domestic
investment, apart from certain exceptions.13 This is a specific obligation
that restricts regulatory discretion, subject to the treaty language and
other provisions, to take measures in favour of domestically produced
goods or domestic investment.
A more specific instance in India which illustrates the limitations
imposed by the WTO treaty on India’s regulatory discretion was the
introduction of the product patent regime in pharmaceuticals from 1
January 2005. The Agreement on Trade Related Aspects of Intellectual
Property Rights (TRIPS agreement) in the WTO, which came into exis-
tence on 1 January 1995, imposes an obligation on member countries of
the WTO (including India) to provide patents for inventions, whether
products or processes, in all fields of technology.14 India was given a 10-
year transitional period to implement these obligations. The Indian
Patent Act of 1970 recognised product patents except on pharmaceuticals
and agriculture, to keep the prices of medicines low by encouraging the
growth of the generic pharmaceutical industry in India. The generic phar-
maceutical industry in India took advantage of this to produce generic
versions of patented drugs at very cheap prices. As a result, Indian generic
manufacturers became a massive source of medicine supply within India
and also to many other countries (Abbot, 2005: 322). The significance of
generic manufacturing of medicines in India in keeping the prices low can
be gauged from a simple statistic: the generic production of the HIV treat-
ment Fulcanazole in India kept the price at US$55 for 150 milligrams, as
compared to US$697 in Malaysia and US$817 in the Philippines (UNDP,
2000: 84). Hence, India benefited immensely by not having a product
patent regime in pharmaceuticals from 1970 to 2004. However, from 1
January 2005, the situation has changed, due to the expiry of India’s 10-
year transactional period for implementation of the WTO patent regime.
Now India no longer possesses the regulatory discretion to allow generic
manufacturing of the patented medicine without honouring the conditions
given in the TRIPS agreement, such as paying adequate remuneration to
the patent holder.15 Section 5 of the Patent Act 1970 (which exempted
pharmaceuticals from patent enforcement) has been omitted by the third
amendment to the Indian Patent Act 1970.16 In view of the new regime,
64 Asian Law [Vol 11

concerns have been expressed about the possible impact of product

patenting on prices of medicines and hence their accessibility to the poor
(Cullet, 2002: 93; CESCR, 2000; World Bank, 2001; Balasubramaniam,
2002: 93).
In contrast, the obligation imposed by a human rights treaty such as
the ICESCR,17 which recognises the human right to health and food
(ICESCR art 12), imposes broader and vaguer obligations. These obligat-
ions do not require a country to ensure that all citizens are healthy or
to provide food to everybody, but they do require a country to move
expeditiously towards guaranteeing these rights, for example by enacting
relevant legislation.18 These broad obligations provide discretion to
countries in deciding how to give effect to their international obligations.
In other words, countries have more policy space in deciding how and
when to implement their human rights obligations. Realisation of human
rights, for instance, is partly dependent on the kind of resources available
to a country. This is different from the situation where a country has to
implement a WTO obligation, which if not implemented will result in
retaliation or countermeasures being imposed by the other country. Thus,
the obligations imposed by trade and investment treaties are much
stricter and more stringent as compared to the obligations imposed by
human rights treaties.

Retaliatory or Countermeasures for Breach of Provisions Involving

Economic Cost
An important difference between trade and investment treaties and other
international treaties is that failure to comply with the obligations of the
former may bring in strong retaliatory actions or countermeasures.
In the context of the WTO treaty, this can be understood with the
help of a simple example. Assume that country A and B are two WTO
member countries. Further assume that country A alleges that country B
has adopted a measure that is inconsistent with the WTO and brings a
case against country B in the Dispute Settlement Body (DSB) of the WTO.
If country A is successful in proving the violation, then the DSB will ask
country B to comply with the ruling and bring its inconsistent measure
into line with the WTO treaty. Failure by country B to comply with the
ruling will allow country A to successfully seek authorisation from the
DSB to retaliate against country B.19 Once authorisation is given, country
A can retaliate by imposing trade sanctions, which could take the form of
imposing high tariff rates on imports of country B to country A. For
example, if country A has suffered a trade loss of US$100 billion due to
the illegal measures of country B, then country A can impose extra tariffs
to the tune of US$100 billion on imports from country B. As a result of
2009] Treaties on Indian Trade and Investment 65

these extra tariffs imposed, country B’s exports to country A will be

affected. Hence, failure to implement a WTO obligation can attract coer-
cive economic measures that will impose an economic cost on a country
refusing to comply.
WTO treaties therefore have sound enforcement mechanisms.
Enforcement here implies the ability to enforce the decisions, especially in
terms of providing for measures in cases of non-compliance. In order to
appreciate this better, it is useful to compare the WTO’s dispute settle-
ment system with the International Court of Justice (ICJ) system, the
most important judicial body concerned with settling disputes in inter-
national law.20 The United Nations (UN) Charter describes the ICJ as the
‘principal judicial organ’ of the UN. Article 60 of the Statute of the ICJ
states that a judgment given by the court is final and without appeal.
However, the court is not itself concerned with compliance. In other
words, the Statute of the ICJ does not lay down what will happen if a
country refuses to comply with a ruling of the ICJ. Some guidance to such
situations is given in the UN Charter, art 94(1) of which states that ‘each
member of the UN undertakes to comply with the decision of the ICJ in
any case to which it is a party’. Hence, art 94(1) creates an international
obligation on every UN member country to comply with rulings of the ICJ.
The UN Charter does not, however, tell us much about a situation where a
UN member country refuses to comply with that obligation. Article 94(2)
of the Charter merely states that, in such cases, the other party may have
recourse to the UN Security Council, which may, if it deems necessary,
make recommendations or decide measures needed to give effect to the
ruling. The need to take measures may arise if, for example, a country’s
non-compliance presents a major threat to international peace. Apart from
this, there is nothing in the UN Charter or the ICJ Statute that explains
how to tackle a situation where one country refuses to comply with an ICJ
ruling. The lack of enforcement mechanism has led to a situation where
the record of compliance with ICJ rulings is very poor (Shaw, 2003: 996).
This discussion is not in any way meant to reduce the significance of the
ICJ or its rulings, simply to illustrate that the WTO has a greater ability
to enforce its own decisions relating to trade.
Similarly, at international investment law most investment treaties
recognise rights of private investors to bring cases directly against a host
state, if the private investor feels that the host state has violated a
provision of the investment treaty. This investor-state dispute resolution
mechanism (also known as investment-treaty arbitration) available in the
investment treaties gives them a very strong enforcement character where
the investors can sue nation states directly for damages, as in the case of
an investment treaty arbitration involving Argentina, where Argentina
66 Asian Law [Vol 11

was ordered to pay US$133 million to a US-based investor (Harten, 2007:

3).21 The convention on settlement of investment disputes under the World
Bank, known as the International Centre for the Settlement of Invest-
ment Disputes (ICSID) Convention, is an investor-state arbitration forum,
the awards of which are directly enforceable within the territories of all
states that are party to ICSID (Dolzer and Schreuer, 2008: 20). This is a
unique characteristic that other international arbitral bodies lack, which
is why most investment treaties provide for ICSID as the appropriate
forum to settle disputes between the investor and the state. Hence, the
two factors – investor-state dispute resolution and submitting disputes to
ICSID – give investment treaties very strong enforcement mechanisms
where any violation by the host state will be accompanied by pecuniary
damages to be paid to the foreign investor, that is, in most cases, a heavy
economic cost.
Another instance outside international trade and investment law of
weak enforcement can be found in the international human rights
treaties. Failure to implement a human rights treaty will not invite the
same kind of retaliatory action as breach of a trade treaty. For instance,
both the human rights covenants (the ICESCR and the ICCPR) have weak
implementation procedures. According to art 16 of the ICESCR, countries
must submit reports regarding the progress made in achieving the
observance of rights given in the agreement. Article 40 of the ICCPR
similarly requires countries to submit reports regarding the progress
made towards achieving human rights given in the covenant. These
reports are reviewed by treaty bodies that raise issues and make recom-
mendations in offering their comments on the reports of individual
countries. The countries, in their subsequent reports, have to show
consideration for the concerns expressed by the treaty bodies. Failure to
do so does not, however, attract a penalty. Therefore, human rights at the
international level are implemented by persuasion and embarrassment,
rather than through sanctions as in the case of WTO obligations (Weiss-
brodt and Schoff, 2003: 5).
This illustrates that the inherent assumption in Entry 14 and art 253
that all international treaties are homogenous is contentious. Internat-
ional treaties are heterogeneous, with different treaties having different
ramifications – thus it is imperative to devise and develop mechanisms
that adequately tackle situations presented by different treaties. This is
not intended to propose a hierarchy amongst international treaties, as no
such hierarchy exists in public international law. In fact, art 26 of the
Vienna Convention on the Law of Treaties (VCLT)22 even provides that
every treaty in force is binding on the parties and should be performed by
them in good faith. In other words a country is bound at international law
2009] Treaties on Indian Trade and Investment 67

by all treaties it has signed and must fulfil all its international obligations
simultaneously. India should, of course, implement and comply with all its
international obligations imposed by different international treaties in a
harmonious manner. Nevertheless, it cannot be ignored that there are
certain treaties that have more substantive and direct impact on the
domestic economy, polity and people of a country as compared to others
and, therefore, the national response to such treaties should be different.

Status of Trade and Investment Treaties Not Enacted

by Parliament
After examining the heterogeneous nature of international treaties in the
previous section, this section examines the status of trade and investment
treaties signed by the central executive but not enacted by the central
legislature because they do not require any new law to be enacted or any
existing law to be changed or amended. This examination will be done at
two levels. First, the status of trade and investment treaties not enacted
by the parliament as part of the domestic legal regime will be examined.
Second, it will examine how trade and investment treaties not enacted by
the parliament affect India’s international obligations.

Status of Trade and Investment Treaties Not Enacted By the Central

Legislature in the Domestic Legal Regime
In order to analyse the specific nature of trade and investment treaties, a
general discussion of judicial pronouncements on the status of inter-
national treaties not enacted by the central legislature is pertinent. The
general question here is as to the status of international treaties not
enacted by the parliament in the Indian legal system: do they enjoy the
status of law within the domestic legal regime? This issue has been
examined by the Supreme Court of India.23 In Jolly George Verghese v
Bank of Cochin, 1980 (2) SCC 360, one of the earlier cases on this issue,
the Supreme Court held that treaties signed by India are not part of the
domestic legal regime unless they have been transformed into domestic
law, that is, the courts cannot give relief to an individual on the basis of
an international covenant signed by India, if it has not been transformed
into a national law. Although in this case the Supreme Court interpreted
the relevant domestic legal provision in accordance with the international
convention, in some recent cases, it has taken a different view on this
issue. For instance, in DK Basu v State of Bengal, 1997 (1) SCC 416, a
case involving paying compensation for unlawful detention, the Supreme
Court took note of the ICCPR and held that compensation should be given
to anyone who has been unlawfully arrested or detained. The apex court
68 Asian Law [Vol 11

referred to art 9(5) of the ICCPR, which states that ‘anyone who has been
the victim of unlawful arrest or detention shall have an enforceable right
to compensation’. It decided that, although there is no explicit consti-
tutional provision, the government should nevertheless pay compensation
for the unlawful detainment (at para 42). The Supreme Court, in People’s
Union for Civil Liberties v Union of India, 1997 (3) SCC 433, a case
involving breach of right to privacy, referred to international covenants
including the ICCPR and the UDHR, and held that it is an accepted
proposition of law that rules of customary international law that are not
contrary to the municipal law should be deemed to be incorporated in the
domestic law (at para 23). In that case, the Supreme Court referred to
art 17 of the ICCPR which states that:
No one shall be subject to arbitrary or unlawful interference with his
privacy, family, human or correspondence, nor to lawful attacks on his
honour and reputation.

In Vishaka v State of Rajasthan, 1997 (6) SCC 241, a case involving sexual
harassment at the work place, the Supreme Court applied the Convention
on Elimination of all Forms of Discrimination against Women (CEDAW),
to which India is a party, holding that international treaties signed by
India have the status of law in India, so long as these treaties are not
inconsistent with Indian law (Singh, 2001: 314).
The Supreme Court has thus developed a test that if an international
treaty is not inconsistent with domestic legal provisions it should be
enforced. But what happens if an international treaty, signed by the
central executive, is in conflict with a national law? Applying the test that
emerges from the case law discussed above to such a situation would
imply that the domestic legal provision should prevail or trump the
international treaty, but this is not as simple as it appears. This becomes
clear when one applies the test of the Supreme Court to situations
presented by the trade and investment treaties. For example, by agreeing
to a national treatment provision in an IIA, the central executive may
undermine the ability of the States to enact legislation that gives incen-
tives to local industries and investments since they will have to extend the
same treatment to the foreign industries and foreign investments.
Although there are certain safeguards in the IIAs signed by India such as
subjecting foreign investment to Indian laws, such a conflict situation
cannot be ruled out. For example, Entry 24 of the State List gives the
power to the State legislatures to make laws related to certain industries.
If a State makes a law through which it extends certain privileges to a
particular infant industry so as to boost its growth, this law may come in
conflict with the national treatment obligation that the same privileges
also need to be extended to the foreign investments in the State.
2009] Treaties on Indian Trade and Investment 69

Extending the same privileges to foreign investment in that State would

undermine the benefit that is intended only for the infant industry.
Hence, the obligation on India under the investment treaty runs counter
to the law of the concerned State. How should such a conflict be resolved?
Applying the test laid down by the Supreme Court would mean that State
law must be given precedence over the international investment treaty
but this would render India in violation of its international obligations
and this could be challenged by the affected foreign investor at the
international level. The Indian model text of the IIA allows the foreign
investor to resort to international arbitration for settling disputes if there
is no amicable domestic resolution.24 Such international arbitration can
take place at the ICSID, or it could be conducted by an ad hoc arbitral
tribunal in accordance with the arbitration rules of the United Nations
Commission on International Trade Law (UNCITRAL) 1976.25 Likewise,
art 27 of the VCLT states, however, that ‘a party may not invoke the
provisions of its internal law as justification for its failure to perform a
treaty’, that is, states cannot use their respective domestic laws as
grounds to avoid their international law obligations and so India would
find itself culpable at international law.
If the investment agreement is given precedence, then the consti-
tutional space of an Indian State will be restricted by a treaty signed by
the central executive in that it will be deterred from making a particular
law. It should be noted, however, that the Constitution is silent on the
issue of whether the power of the State legislatures can be restricted due
to international treaties signed by the central executive. It only refers to
those situations where the powers of the State legislatures are curtailed
by the central legislature enacting a law on a subject given in the State
List to implement a treaty pursuant to art 253, as discussed above. This
creates two important problems. First, how to resolve such a conflict and,
second, does the central executive, in fact, have the power to limit the law-
making ability of the State legislatures and reduce their constitutional
space by entering into treaties? These are complex questions that do not
have easy answers within the existing constitutional and legal framework
in India. The National Commission to Review the Working of the Con-
stitution (NCRWC), in its consultation paper, has, for example, suggested
that a clause should be added to art 253, declaring that a treaty concluded
by the central executive of India shall be treated as an instrument having
the force of law within the territory of India (NCRWC, 2002). In other
words, once a treaty has been signed by the central executive, the treaty
will have the force of law in India by virtue of the principle of incor-
poration. The advantage of such a proposal is that it will remove the
ambiguity attached to present treaty-making. Hence, no new law in
70 Asian Law [Vol 11

contravention of the treaty could ever validly be enacted by a State.

However, even if such an amendment were made, the larger question
regarding curtailment of the policy space of the States by the central
executive would remain unanswered.
The issue of cooperation between States to implement obligations
imposed by trade and investment treaties also remains unresolved.
Should a law that gives the treaties enacted by the central executive the
force of law in the whole of India and which involves subjects in the State
List specify processes that need to be followed before the central executive
signs the law? In other words, should it be mandatory that all
international treaties signed by India should be ratified by the central
legislature before they acquire the force of law in India in order to make
sure that such treaties enjoy greater democratic legitimacy?

Treaties on Trade and Investment Not Enacted By the Central

Legislature and India’s International Obligations
After examining the status of treaties not enacted by the central legis-
lature in the Indian domestic legal regime, I now focus on the impact of
such treaties on India’s international obligations. A treaty signed by the
central executive becomes binding on India with regards to its inter-
national obligations, whether it is enacted by the parliament or not. In
other words, even if the parliament does not enact legislation to imple-
ment a treaty signed by the executive, it nevertheless continues to bind
India internationally.
As pointed out earlier, there is no provision in the Constitution that
requires mandatory ratification or approval of a treaty signed by the
central executive by the central legislature for it to be binding on India.
This is true for all treaties including trade and investment treaties.
Testimony to this are the events related to the obligations imposed by the
TRIPS agreement on India. As pointed out earlier, India was given a 10-
year transitional period to implement the TRIPS agreement during which
India could postpone the implementation of the product patent regime.
However, during this period India had to set up a mechanism whereby
potential patent applications could be filed (the ‘mail box’ system) so that
these applications could be examined after the transitional period so that
no subsequent claimant is able to assert the same patent (Trebilcock and
Howse, 2005: 417).
In order to comply with these obligations, the Indian government
promulgated an Ordinance on 31 December 1994, which amended the
India Patent Act 1970 by providing for the filing and handling of patent
applications for pharmaceutical and agricultural chemical products.
However, this Ordinance lapsed in March 1995. Subsequent to the lapsing
2009] Treaties on Indian Trade and Investment 71

of this Ordinance, the Indian government introduced a Bill in the central

legislature (Patents Amendment Bill 1995) to amend the Patent Act 1970.
The Bill sought to put in place a system for the filing of applications for
product patents in the field of health and genetic engineering. However,
this Bill was passed by the Lok Sabha (Lower House) but not by the Rajya
Sabha (Upper House) (Cullet, 2005: 77). In other words, after March 1995,
there was no legal regime to provide for the filing of potential patent
applications for pharmaceutical and agricultural chemical products, and
so the central executive set up a mail box system through an adminis-
trative order. The US was not happy with the administrative order and
argued that such an administrative order did not provide legal security for
applications of potential patentees. The US then filed a case in the DSB of
the WTO against India for violation of its commitments under the TRIPS
agreement. The DSB agreed with the US.26
If enacting legislation or mandatory ratification by the central
legislature was a necessary condition for a treaty signed by the central
executive to become binding on India, then there would have been no need
for the central executive to set up the mail box system through the
administrative order and to defend it in the dispute in the WTO against
the US. India could have simply taken the position that it is not bound by
the TRIPS obligations since the central legislature of India had refused to
enact legislation to this effect. However, such a stand was not taken. This
drives home the point that, once the central executive has signed an
international treaty, it automatically becomes binding on India and does
not require parliamentary ratification (Dhawan, 2003: 12). Coming back
to the India-US dispute in the WTO, the central legislature eventually
amended the Patent Act 1970 in 1999 through the Patents (Second
Amendment) Bill 1999. Had the central legislature refused to amend the
Patent Act on the second occasion, it would have allowed the US to
retaliate by imposing trade sanctions under the WTO treaty.
In the changing world of global treaties, and given the profound
impact of the trade and investment treaties, is it legitimate for the central
executive to undertake an onerous obligation without any parliamentary
sanction (Dhawan, 2003: 12)? This question is particularly important in
light of the federal nature of India. The next section discusses this issue in
greater detail but even in cases where the central legislature does enact
domestic law to implement an international treaty on trade and invest-
ment, that enactment is not ratification per se. Ratification of a treaty by
the central legislature implies that the central legislature first decides
whether it will be bound by the terms of the treaty or not. Once it has
decided that it will be bound, it then proceeds to the issue of how to enact
a law to implement a treaty in cases where implementation of the treaty
72 Asian Law [Vol 11

requires such an enactment. Hence, enactment is only the process to

ensure that the international obligation that has already been undertaken
is implemented at the domestic level. In India, the central legislature can
only play the second role and not the first. Therefore, enactment as a
process cannot change the real substance of the obligation imposed by the
international treaty.

The Issue of Federal Character

Although the Constitution explicitly allows the central legislature to
legislate on subjects specified in the State List in order to implement
international treaties, it is, as mentioned, silent on whether the central
executive can enter and sign treaties on subjects specified in the State
List, or whether its power to enter into treaties is limited to the subjects
contained in the Union List. In other words, there is no provision
equivalent to art 253 for the central executive. In this context, an impor-
tant question that emerges is what happens to the federal character of
India when the central legislature makes a law to implement a treaty that
encroaches on the power of a State? Or when the central executive
negotiates and signs a treaty on a subject specified in the State List with-
out actively engaging the States?
Before discussing this issue, it will be appropriate to reflect briefly on
the processes now followed in India to consult States on the issue of trade
policy-making. The central executive does consult States on the issue of
the WTO, although this consultation is neither regular nor institut-
ionalised. One mechanism used by the central executive is the National
Development Council (NDC), an apex body in India’s federal polity
comprising the Prime Minister, all central executive ministers and the
chief ministers of all the Indian States (Sen, 2004: 27). The meetings of
the NDC are not very frequent given its size, and the NDC discusses
many other issues and hence is often not able to devote enough time to
discuss issues specifically related to trade policy-making. Further, the
NDC will never be able to discuss the structure and provisions of a treaty.
The NDC can only discuss broad and general policy positions. Apart from
this, some of the States have developed ‘WTO cells’ in order to understand
the ramifications of the WTO treaty on their economy, mainly agriculture
(Dhar and Kallummal, 2007: 197).
Barring these few initiatives, in India there is presently no insti-
tutionalised mechanism where the central executive consults the States
comprehensively and regularly on issues related to trade and investment
policy-making or any other mechanism where the feedback of States is
taken on the specific provisions of trade and investment treaties that
India may be negotiating. One example clearly demonstrates the tension
2009] Treaties on Indian Trade and Investment 73

between the central executive and the State governments on trade

negotiations: in a report published in the Business Standard, a leading
business newspaper in India, the State of Kerala expressed its displeasure
at India’s offer to cut tariffs on crude palm oil and refined oil in the Free
Trade Agreement (FTA) negotiations with ASEAN (Ramachandran,
2007).
One can characterise the Constitution as setting out a neat division of
labour between the central executive and the central legislature on the
one hand, and the State executive and the State legislature on the other
hand. The former do not interfere in the operation of the latter. The latter
have adequate flexibility and freedom to function independently, except in
certain circumstances, such as cases of constitutional emergency.27 In this
regard, an important concept that has emerged is that of cooperative
federalism, where States and the centre, while respecting their juris-
dictional limitations, work together by a process of mutual consultation
and discussion. This spirit of cooperative federalism is certainly evident in
the Constitution in the schemes of financial relations (see art 280 of the
Constitution) and centre-State administrative relationships (see arts 256–
263 of the Constitution) and the formation of the NDC, as mentioned
above. One of the important objectives behind the spirit of cooperative
federalism is to develop and sustain smooth centre-State relations. The
success of cooperative federalism depends on the extent to which centre-
State relations are smooth and transparent.
The centre-State relationship is an important cornerstone of the
Constitution and its smooth functioning is an important requirement of
the smooth functioning of the Indian polity as a whole. One element of
centre-State relations, as discussed above, is that the central executive’s
power does not exist on subjects given in the State List, except according
to the provisions in the Constitution. This again raises an important issue
related to the ability of the central executive to undertake international
negotiations and enter into treaties on subjects which are in the State
List. The question from a cooperative federal point of view is thus whether
the central executive can enter into international negotiations with the
aim of signing an international treaty on subjects given in the State List,
and do so without consulting the States. Does this not undermine the
cooperative spirit behind the federal polity evident in the Indian con-
stitution?
In fact, India’s central executive has long been signing treaties on
subjects given in the State List without consulting the States in any
institutionalised manner. The Uruguay Round of negotiations that invol-
ved agriculture, a State subject in India (Iyer, 2003: 10), is a case in point.
Negotiation in the WTO on agriculture under the Doha Round28 is another
74 Asian Law [Vol 11

instance where the central executive is actively involved in the agriculture

negotiations in the WTO without any institutionalised mechanism for the
cooperation and support of the States. In this context, two arguments
could be developed.
First, the central executive is not required by the Constitution to have
the sanction of the States, because it is fulfilling its obligations to under-
take international negotiations with the purpose of signing a treaty which,
according to art 73 and Entry 14 of the Union List, it is entitled to do. In
fact, in the case of Union of India v Azadi Bachao Andolan (2004) 10 SCC
1, it was held by the Supreme Court that treaty-making power vests with
the central executive under art 73, although this case did not involve
issues such as whether the central executive can negotiate and sign
treaties on subjects given in the State List.
On the other hand, it has been argued that any treaty entered into by
the central executive on a subject given in the State List is beyond its con-
stitutional power under art 73, and hence is unconstitutional, inoperative
and not binding on India (NCRCW, 2007). In PB Samant v Union of India,
AIR 1994, Bom 323 in the Bombay High Court, the issue was whether the
central executive, in exercise of its executive power under art 73, could
enter into international treaties on subjects given in the State List. More
specifically, the petitioners in this case, asked the Bombay High Court to
issue a writ of mandamus to restrain the central executive from entering
into a final treaty relating to the Dunkel proposals without obtaining the
sanction of the Parliament and the State legislatures. The Dunkel
proposals deal with subjects given in the State List, such as agricultural
trade, irrigation facilities, raw cotton, and so on, which means that the
central executive cannot enter into a treaty on these subjects. The Court
held that just as the parliament has the power to legislate on matters in
the State List for the implementation of an international treaty under
art 253, so the central executive also has the power to enter into treaties
on subjects given in the State List: the power of the central legislature and
the central executive exists simultaneously.
This judgment is certainly not the last word on this issue for several
reasons. First, it is not a judgment of the Supreme Court. Second, the test
laid down in the judgment fails to tackle some of the complicated
situations that may arise as a result of India’s international obligations on
trade and investment, such as the ongoing Doha Round of negotiations in
the WTO where one of the issues under negotiation is agricultural trade.
If India and other WTO member countries agree on new rules related to
agricultural trade in the WTO, will India be bound by these new rules?
The treaty would be on agriculture, which is a State subject and therefore
the central executive has no power to enter into a treaty. This is indeed a
2009] Treaties on Indian Trade and Investment 75

complex situation. Applying the test laid down in the PB Samant Case,
one does not see any difficulty. The Agreement on Agriculture (AoA)29 will
be binding on India even if it is a State subject, because the executive,
under art 73, has the right to negotiate and enter into treaties even if they
are on subjects given in the State List. Accepting the argument that India
is bound to the new agreement implies that the executive is interfering
with the constitutional policy space of the States. Further, this
encroachment may also be not just of the State executives but also of the
State legislatures, since the new obligations may bar India (both the
central legislature and the State legislatures) from enacting agricultural
laws that run counter to India’s commitment under the WTO. Further,
there could also be cases where the new treaty obligations imposed by the
AoA require India to make new laws or adopt different agriculture
policies. These laws and policies may be needed to be enacted by the
States, although it could be argued that the parliament could enact such
laws using the power given to it under art 253. Nevertheless, the
cooperation of the States will be needed for the effective implementation of
the law and hence for India to comply with its international obligations.
However, such cooperation may be difficult to obtain if the States were not
consulted during the negotiations, or when the obligations were under-
taken.
Arguing that such obligations do not bind India because it is a treaty
on a State subject where the central executive has no power to enter into a
treaty and hence States are free to develop their policies and laws on
agriculture, would lead to the conclusion that India is in breach of its
international obligations to the rest of the world. This discussion again
raises the question: which of the two interpretations is correct, and how
will such a situation be resolved so that the constitutional power of the
States is not impeached by the centre and India upholds its international
obligations? This issue should not be looked at purely as a question of
which interpretation of art 73 is correct, or whether central executive also
has the power, like the central legislature, to negotiate and sign
international treaties on subjects given in the State List. Even if one may
agree with the interpretation that the central executive has the power to
enter and sign treaties on subjects given in the State List, the larger
question is whether this imposes any obligation on the central executive to
consult with the States before they embark on the process of negotiations
and sign treaties on crucial economic issues? This issue should be
analysed in the broader context of the trade and investment treaties.
International treaties on trade and investment signed by the central
executive on subjects in the State List certainly entail economic, social and
political ramifications at a macro and micro level as discussed above.
76 Asian Law [Vol 11

These treaties restrict the sovereignty of the States in India on crucial

policy issues, which they otherwise enjoy and they are signed by the
central executive without much discussion or consultation with the States.
This goes against the spirit of cooperative federalism, which demands
putting in place institutionalised structures whereby the central executive
comprehensively and regularly consults the States on treaties related to
trade and investment. Such formal and institutionalised mechanisms do
not exist in India.30 This certainly puts a question mark on the present
practice, and on the unfettered freedom of the central executive to sign a
treaty on a State subject.

Conclusion
This article has raised questions to which there are no easy answers. It is
important to think afresh the entire business of treaty-making in India,
especially trade and investment treaties. It is important to understand
that treaty-making and international negotiations in the world of
international treaties are not something with which only the executive
should be involved. This article has argued that international treaties are
heterogeneous in nature, and that the trade and investment treaties
impose many onerous obligations on India. In order to meet the challenge
of these obligations, it is imperative to develop new mechanisms that
involve all the affected stakeholders.
This may suggest the need for amendments in the Constitution to
address these issues, but I conclude that this is not necessary. The issues
can be addressed if the Indian parliament makes a law on Entry 14 of the
Union List to provide the mechanisms and processes the central executive
should follow while negotiating and signing an international treaty on
trade and investment, that is, the parliament should enact a law on
treaty-making that recognises the following elements: international
treaties are a heterogeneous category; there should be mandatory parlia-
mentary control or scrutiny of international treaties on trade and
investment by ensuring the ratification of treaties signed by the central
executive or developing some other effective form of parliamentary super-
vision over trade and investment treaties; and negotiation of international
treaties on trade and investment that involve subjects given in the State
List should involve mandatory consultation with the States through
institutionalised mechanisms.31 Needless to say these suggestions are
mere pointers to the broad contours of such legislation and more research
is needed to develop their content, but it is clear that trade and
investment treaties signed by India should undergo a thorough legislative
testing, in order to enjoy greater democratic legitimacy.
2009] Treaties on Indian Trade and Investment 77

Notes
∗ Assistant Professor, WB National University of Juridical Sciences (NUJS), Kolkata,
India; BA (Hons) (Delhi); LLB (Delhi); LLM (SOAS, London). The author is a Chevening
scholar of the British Council. He is grateful to Professor Mahendra P Singh for his
invaluable comments. He also expresses deep gratitude to Professor Werner Menski,
Dr Martin Menski, Professor PN Singh and Professor Kamala Sankaran for their
comments on earlier drafts. The author is also grateful to Vibhu Sharma, LLB student
at NUJS, for her help and to the anonymous referees. Errors, if any, are solely the
author’s responsibility.
1 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 418;
Lonrho Exports v ECGD [1996] 4 All ER 673.
2 Marrakesh Agreement Establishing the World Trade Organization, 33 ILM, 1126
(1994).
3 Brief of India’s Current Engagements in RTAs, Ministry of Commerce and Industry,
Government of India available at <http://commerce.nic.in/india_rta_main.htm>.
4 Investment Division, Ministry of Finance, Government of India, <http://finmin.nic.in/>.
5 India and Mexico signed an IIA on 21 May 2007: The Hindu, 2007.
6 Bilateral Investment Promotion and Protection Agreement (BIPA) between the
Government of the Republic of India and the Government of His Majesty the Sultan and
Yang Di-Pertuan of Brunei Darussalam. The text of this IIA is not available as yet and
so its provisions have not been used in this article.
7 Communication from India to the Working Group on the Relationship between Trade
and Investment, WTO (1999).
8 The State List in the Constitution consists of areas regarding which the State legis-
latures have the exclusive power to legislate, barring certain exceptional circumstances.
Article 246(3) of the Constitution confers such powers on the State legislatures.
9 The Union List in the Constitution comprises of subjects regarding which only the
national parliament has exclusive powers to create legislation. Article 246(1) of the
Constitution confers such power on the central legislature.
10 Parliamentary Standing Committee on Commerce is a department-related parlia-
mentary committee whose functions are to consider bills pertaining to the related
department and to consider national basic long-term policy documents presented to both
the Houses. These committees draw members from both the Houses of the Parliament.
11 For more on this, see Department Related Parliamentary Standing Committees,
<http://164.100.47.5:8080/committeereports/allcommittees.aspx>.
12 Directive principles of State policy are provisions given in Part IV of the Constitution
that are not enforceable by any court but are nevertheless fundamental to the
governance of India.
13 Such exceptions could exist in the form of provisions which recognise the right of the
host country to discriminate between domestic and foreign investments when such
investments are not in ‘like circumstances’. Similarly, in trade treaties countries could
differentiate between products that are not alike.
14 See art 27.1 of the TRIPS agreement.
15 See art 31 of the TRIPS agreement that gives the compulsory licensing option to
countries and hence allows generic production of patented medicines in limited cases.
16 The Patents (Amendment) Act, 2005, Ministry of Law and Justice, <http://ipindia.
nic.in/ipr/patent/patent_2005.pdf>.
17 International Covenant on Economic, Social and Cultural Rights, New York, 6 ILM 360
(1997).
18 Committee on Economic, Social and Cultural Rights, 2000. This states that repealing
legislation which is necessary for the continued enjoyment of the right to health is said
to be the violation of the right to health. See also art 16 of ICESCR and art 40 of the
78 Asian Law [Vol 11

ICCPR, which requires countries that are parties to these treaties to submit reports
about the progress made towards achieving the rights given in these agreements.
19 For more on this, see the Understanding on Rules and Procedures Governing the
Settlement of Disputes, 1994.
20 The ICJ is established under art 92 of the Charter of the United Nations and its statute
is appended to the Charter.
21 CMS Gas Transmission Company v Argentine Republic (Merits) (12 May 2005), 44 ILM
1205.
22 Convention on the Law of Treaties, Vienna, 8 ILM 679 (1969).
23 In ADM Jabalpus v Shirkant Shukla (1976) 2 SCC 521, the Supreme Court held that, if
two constructions of municipal law are possible, courts should lean towards that
construction which would bring municipal law into harmony with international law.
24 Article 9(2) of the India Model text of IIA.
25 Article 9 (3) of the Indian Model IIA.
26 Report of the Appellate Body (19 December 1997).
27 See art 356 of the Constitution for such a constitutional emergency.
28 The fourth WTO Ministerial Conference was held in Doha, Qatar in November 2001. At
this conference, the member countries of the WTO launched a new round of trade
negotiations.
29 Agreement on Agriculture, 15 April 1994, Marrakesh Agreement Establishing the
World Trade Organization, Annex 1A, 1867 UNTS 410.
30 It is noteworthy, although a proper comparison is beyond the scope of this article, that
Australia has developed principles and institutions for consultation about treaties to
take place between the federal executive and the federal parliament, and between the
federal government and the governments of the component States and Territories: see
Australian Government, Department of Foreign Affairs and Trade, Treaties and Treaty
Making (<http://www.dfat.gov.au/treaties/making/making2.html>). India could usefully
consider adopting a similar approach.
31 An interesting issue that may arise here is that the central executive could challenge
such a law by the Parliament as unconstitutional since it is restricting the treaty-
making power of the executive, which it enjoys by the combined reading of art 73 and
Entry 14 of the Union List. Such a situation will normally not arise because a law of
this nature will not be passed in the Parliament without the support of the government
(central executive) of the day. However, a theoretical possibility certainly exists.

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Laws
Indian Laws and Policies
Brief of India’s Current Engagements in RTAs, Ministry of Commerce and Industry
<http://commerce.nic.in/india_rta_main.htm>
Constitution of India 1950
Indian Model IIA (see <http://finmin.nic.in/>)
Patents Act 1970
Patents (Amendment) Ordinance, 1994, No 13 of 1994.
Patents (Amendment) Bill 1995, Bill No 5 of 1995
Patents (Second Amendment) Bill 1999, Bill No 39 of 1999

International Instruments and Treaties

Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS agreement). 33
ILM 1197 (1994)
Agreement on Agriculture (15 April 1994). Marrakesh Agreement Establishing the World
Trade Organization, Annex 1A, 1867 UNTS 410
Arbitration rules of the United Nations Commission on International Trade Law
(UNCITRAL) 1976, <http://www.jus.uio.no/lm/un.arbitration.rules.1976/>
Bilateral Investment Promotion and Protection Agreement (BIPA) between the Government
of the Republic of India and the Government of His Majesty the Sultan and Yang Di-
Pertuan of Brunei Darussalam
Committee on Economic, Social and Cultural Rights (2000) General Comment No 14, The
Right to the Highest Attainable Standard of Health, UN Doc E/C 12/2000/4 <http://
www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En>
Communication from India to the Working Group on the Relationship between Trade and
Investment, World Trade Organization, WT/WGTI/W/71
Convention on the Elimination of all Forms of Discrimination against Women <http://www.
un.org/womenwatch/daw/cedaw/text/econvention.htm>
International Covenant on Civil and Political Rights (ICCPR) 6 ILM 383 (1967)
International Covenant on Economic Social and Cultural Rights (ICESCR), 6 ILM 360 (1997)
Hong Kong Ministerial Conference, Department Related Parliamentary Standing
Committees, <http://164.100.47.5:8080/committeereports/allcommittees.aspx>
Marrakesh Agreement Establishing the World Trade Organization, 33 ILM 1126 (1194)
Statute of the ICJ (see <http://www.icj-cij.org/>)
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) (1994)
33 ILM 1226
United Nations Declaration of Human Rights GA res 217A (III), UN Doc A/810 at 71 (1948)
United Nations Charter, <http://www.un.org/aboutun/charter/>
Vienna Convention on the Law of Treaties, 8 ILM 679 (1969)
2009] Treaties on Indian Trade and Investment 81

Cases
Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326
Berubari Union and Exchange of Enclaves, Re, AIR 1960 SC 845
CMS Gas Transmission Company v Argentine Republic (Merits) (12 May 2005), 44 ILM 1205
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
DK Basu v State of Bengal, 1997 (1) SCC 416
Jabalpus v Shirkant Shukla (1976) 2 SCC 521
Jolly George Verghese v Bank of Cochin, 1980 (2) SCC 360
Lonrho Exports v ECGD [1996] 4 All ER 673
PB Samant v Union of India, AIR 1994, Bom 323
People’s Union of Civil Liberties v Union of India, 1997 (3) SCC 433
State of Kerala v Kesavananda Bharathi [1973] Supp SCR 1
Union of India v Maghanbhai Ishwarbhai Patel, AIR [1969] SC 783
Union of India v Azadi Bachao Andolan, (2004) 10 SCC 1
Vishaka v State of Rajasthan, 1997 (6) SCC 241