Guest Post: Indian Court embraces the Vienna Convention on Law of Treaties

by Sushma Nagaraj

[Sushma Nagaraj is an Advocate practicing commercial and constitutional law before the Bombay High Court, India. She assisted Mr. Kevic Setalvad, the Senior Advocate who represented AWAS Ireland Ltd. (the Petitioner before the Honorable Delhi High Court) with legal research on aviation law and public international law.]

Indian Courts have, for the most part been generous in applying International Law but recently, the Delhi High Court in AWAS Ireland v. Directorate General of Civil Aviation (W.P.(C) 671/2005, Judgment delivered on 19th March 2015, available here) marched a step ahead.

AWAS, which had leased aircrafts to Spice Jet, an Indian low cost carrier initiated writ proceedings in the Delhi High Court seeking de-registration of the leased aircrafts, upon termination of the lease agreements with Spice Jet for default in payment of lease rents. The High Court applying the Cape Town Convention on International Interest in Mobile Equipment, 2001 as also the Aircraft Protocol to the Cape Town Convention, to which India is a party, sanctioned de-registration of the aircrafts.

The Cape Town Convention and Aircraft Protocol have not been expressly, by legislation, adopted as a part of the Indian municipal law. All the same, the Supreme Court of India has, in plethora of cases including Aban Loyd Chiles Offshore v. UOI ((2008) 11 SCC 439; available here) consistently held that in the absence of municipal law, treaties can be looked into, if they are not in conflict with municipal law. In Vishaka v. State of Rajasthan ((1997) 6 SCC 241; available here) and National Legal Services Authority v. Union of India, ((2014) 5 SCC 438; available here), the Supreme Court of India applied international law even when then was no municipal law holding field in a certain area. In T.N.Godavarman Thirumulpad v. Union of India ((2012) 4 SCC 362; available here), the Supreme Court laid down a short but categorical directive – that treaties not contrary to municipal law are deemed to be incorporated in the municipal law. This was sufficient ammunition for India to apply the Cape Town Convention and the Aircraft Protocol.

While this is noteworthy, there is something else that makes the High Court judgment distinctive. In AWAS, the High Court ventured further. The High Court applied the principles enshrined in the Vienna Convention of Law of Treaties, 1969. What makes AWAS significant is that India is neither a signatory nor has it ratified the Vienna Convention. The High Court applying the principles of pacta sunt servanda in Article 26 and the general rules of interpretation of a treaty in Article 31 of the Vienna Convention, observed that an international convention is required to be interpreted in good faith, in accordance with the ordinary meaning given to the terms of the treaty, in their context, and in the light of its stated object and purpose. The High Court also applied the principle in Article 27 of the Vienna Convention which casts an obligation on a State to not only remain bound by the terms of a treaty entered into by a State but also, to not cite internal law as a justification for failure to perform its obligation under a treaty.

The Court did not debate whether the principles of the Vienna Convention constituted customary international law. This was evitable since the Supreme Court of India had, in Ram Jethmalani v. Union of India ((2011) 8 SCC 1; available here) already recognized that the Vienna Convention codifies many principles of customary international law.

AWAS marks a milestone, not only for India but also for the international community since principles engraved in the Vienna Convention, which are widely perceived as customary international law, have not just been acknowledged, but embraced by the High Court. AWAS is, without doubt, a small yet a significant contribution in the evolution of international law.

5 Responses

  1. Here’s another take, heading to press as we speak. I wonder if I will have to revise in light of AWAS. This book chapter surveys whether and how courts in India apply VCLT rules, particularly Articles 31-33, when they interpret treaties. It looks at both adherence to Vienna rules (either through nominal adherence or through the adoption of corresponding methods), as well as coherence of interpretive principles across different kinds of cases and tribunals. Insofar as India is not a signatory to the VCLT, the use of similar rules can be viewed as either application of customary international law, or the adoption of convenient guidelines. Within India, the VCLT is referred to most frequently in cases involving the interpretation of Double Taxation Avoidance Agreements (DTAAs), and it is asked whether this constitutes a specialized regime or whether these cases should be taken as an indication of a more general approach.

  2. This case is interesting insofar as it continues a particular direction by the courts, here explicitly bringing together Article 51(c) of the Constitution with Articles 26, 27, and 31 of the VCLT, but is there anything new here that merits the characterization of “embracing” the VCLT? Please read my chapter above and let me know if you think I’m being too cautious or ambivalent. Thanks.

  3. It is, indeed, another landmark alluded to the progressive development of International law that further strengthened the doctrine of “general incorporation” in municipal jurisdictions. The Indian judiciary has always been sensitive to the fundamental principles of Transcendental Institutionalism reflected in its response in AWAS Ireland v. Directorate General of Civil Aviation that amounts to the preservation and promotion of international law.

  4. Vik – The Delhi High Court in AWAS applied the principles in VCLT without any demur. The Court unhesitatingly regarded VCLT as a source of law and an authoritative guide to the law of treaties as opposed to several earlier caselaw where Courts have mentioned VCLT only in the passing. This, to my mind, is a step forward.

    Another aspect that may interest you is that the VCLT was applied by an Indian Court – perhaps for the first time in an aviation matter.

  5. Thanks Sushma. I do recognize reference to the VCLT outside of tax matters is exceedingly rare. This might very well be, as you say, another step forward.

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