The Impact of Global Administrative Law on Administration in India

Rohit Pradhan | 29th September 2019

1.     WHAT IS GLOBAL ADMINISTRATIVE SYSTEM

Global administrative law can be understood as comprising the legal rules, principles, and institutional norms applicable to processes of ‘administration’ undertaken in ways that implicate more than purely intra-State structures of legal and political authority.[1] While few scholars like Armin Von Bogdandy of German School of Heidelberg called global administrative systemas ‘exercise of international public authority’[2] and Eyal Benvenisti Professor of International Law at the University of Cambridge calls it as law of global governance.[3] Evidently, the reason as to why Global administrative system thrives is that global problems require global institutions. To control doping in sports, to control epidemics, to organize Olympic Games, to control world trade, international finance, to protect highly migratory species, to reduce global warming and to monitor the internet, one country cannot administer in such a wide issue cribbing itself in national realm, it has to seek global institution for all.[4] There are numerous international organization which has international influence and has binding effects across various matters upon a sovereign country. Here is the list of ten major international bodies that author find to have very influential position at global scenario.

2.     LIST OF IMPORTANT INTERNATIONAL BODIES

I.            United Nation[5]

United Nation, hereinafter referred as UN is an international organization, which came into force on 24^th October 1945. It is having 193 member states. It has replaced League of Nation[6]

II.            International Monetary Funds[7]

International Monetary Funds, hereinafter referred as IMF, was established in 1945, it was formed to promote and facilitate the world trade, secure financial stability, sustainable economic growth and to decrease poverty globally; as of now it has 189 member countries.

III.            World Health Organization.[8]

World Health Organization hereinafter referred as ‘WHO’ is the subsidiary body of United Nation (UN), which works to consolidate the plan of healthy society and concerned with International Public Health. The Constitution of WHO has been signed by 61 countries, the institution itself works with 149 member states.

IV.            World Bank[9]

It is an international financial institution which lends funds to poorer or developing states for the purpose of development. The very recent goal that the institution envisage is to reduce global poverty.[10] India[11] and China[12] were the two largest recipients of the funds with 859 million $ and 370 million $ in year 2018 respectively.

V.            World Trade Organization[13]

WTO is an international organization or intergovernmental organization which is concerned with the international trade. In the era of Globalization, international trade is the reason for upliftment of society, increasing the GDP of a country etc., hence it is an important sector. It was established under Marrakesh Agreement which was signed by 123 countries. It is the largest economic based organization in the world.[14]

1.     ARRAY OF AREA AFFECTED BY THE GLOBAL ADMINISTRATIVE LAW

There are those international institutions which channelizes the flow of power which affects the sovereign activity of a country and some of the array which is determined by such global administrative systems are arms control,[15] competition law,[16]environmental protection,[17]food safety,[18] intellectual property protection,[19] labor standards,[20]pharmaceuticals regulation,[21]refugee protection.[22] Discuss about ki importance of globalization kikaiseuskebaadjaa k cheeze change huiooper die huyicheezo k liye plus health and wars and arms race… and all… applying all shit to india.

I.            Constitutional Provisions to facilitate implementation of Global Administrative Law.

       I.            Article 51 of the Indian Constitution

This article provides the power to implement various international treaties. The wording of the said section describes that State shall endeavor to foster international peace,[23] maintain honorable relation between countries,[24] foster international law and treaty[25] and finally to encourage arbitration to foster international settlement.[26] Courts in its various judgment has stated that international instrument by the virtue of this article, those international instrument for which India is a party becomes the law of the land as long as they are consistent with the Constitution.[27] It is pertinent to note that, Extradition is considered as a contract,[28]which is enforceable in the court of law.[29] Other principles that circumscribe Article 51, which the court has settled repeatedly, are[30]:

1. International treaties automatically don’t assimilate into a national law but they are incorporated by due process of law.
2. National Courts in regards to international treaty, interpret them in such manner which maintain the harmony between international and national law.
3. National law, if is contrary to the international law, the national law shall prevail.
4. It is the power of Union to enact the international treaties under Article 253.

    II.            Article 253 of the Constitution and Entry 14 of the Union List

Entry 14 of the union list confers the power to the Union, to make laws w.r.t., entering into international treaties or agreement and implementing of treaties.[31] It is clear that, any law passed by the Parliament to give effect to the international treaty will not be invalidated on any absurd ground.[32]

1.     ARMS CONTROL

International laws and treaties govern production, stockpiling, usage, sale or arms, weapon and weapon of mass-destruction.[33] Arms control is initiated through diplomacy in which the consenting parties are obliged to follow the restriction and guidelines for the arms control. Such restriction is enforced by treaties, agreements and conventions.

I.            Reason

The main reason international forces interfere with the arms management is that to avoid the arms race[34] which will in future help the consenting party to move toward future peace.[35]

II.            How it get Enforced

The enforceability of arms control agreement is a difficult task, decision to continue or abort the agreement is still upon the choice of participant country. One such example is Washington Naval Treaty,[36]

III.            During the 19^th Century

The very first treaty of the said era was that of ‘Rush Bagot Treaty’ which was between US and UK, which was entered in 1817, led to the dematerialization in various regions of North America.[37] This era is an important portion in the human history because of the rapid industrialization.[38] Due to the industrialization there was rapid growth in the mechanization of warfare, development in the arms technology which increased the potential threat of the weapons.

These developments and threats which arose from such development raised the security issue of various country. Tsar Nicholoas II (Russia) called together 26 nations for the conference, also called First Hague conference in the year 1899.[39] In the said conference rules were framed in regards to the way war is supposed to be conducted and the use of weaponry and more importantly led to the establishment of the Permanent court of Arbitration.[40]

IV.            (1900 – 1945) Era

As been discussed about the first Hague conference, in this era two Hagueconference were called first one in 1907[41] and second was in the year of 1915.[42] Later on, it was abandoned due to ongoing World-war.[43]

V.            1945 onward

United Nation was formed after World War I[44] in order to promote international security and

Peace.[45] US propounded the Baruch Plan to deter nuclear arms race but was rejected by Soviet

Union.[46] Later on International Atomic Energy Agency was set up in 1957 in order to promote the peaceful use of Nuclear Energy.[47] In the year 1968 after the nuclear test at Pokhran by India, The Nuclear Non-Proliferation Treaty was established, stating that no other country except US, UK, Soviet Union, France and China will possess the Nuclear weapon.[48]

VI.            How it affected Indian Administration

After introduction of NPT, India cannot procure nuclear arms expressly anymore. It changed the way administrative function was functioning till now. Even if the arms are being procured; total secrecy is maintained.  No other country will sell its Uranium to India for the purpose of procuring nuclear arms.

2.     TRADE LAW

It is in the recent times that various National markets have started to act interdependent.[49] Earlier, i.e., before World War II governments were reluctant to open their economy. They had fencing around their economy which they created by charging enormous tax for importation, due to which no market had influence over other market.[50] But after the end of World War II, the said fences weakened. Government decreased the importing cost and this led to the collaborative trade that we see today.[51]

I.            Efforts to increase co-operation in Company Law and Policy

In Historic times and in recent times, Global Administration or countries had and have taken various steps to foster international cooperation in trade and business. The present research will bifurcate such cooperation in two parts, first being Historical aspect and then the current aspect.

       I.            Historical aspect

        i.            The Havana Charter

After World II, United Nation established a mechanism through which it would prevent any event which will cause restrictiveness in the international trade. Such mechanism was the result of the establishment of the institution, which was International Trade Organization (ITO).[52]

UN conducted a Conference on Trade which took place in Havana, also known as Havana Charter, for empowering ITO to specialize in not only governmental trade but any event restricting international trade.

    II.            Present aspect

        i.            The OECD

The OECD, which is The Organisation for Economic Co-operation and Development (OECD) is an international organization whose goal is to promote such policies which has the potential to let its member to achieve the highest sustainable growth in the World’s Economy.[53]

      ii.            The UNCTAD

The UNCTAD, which is The United Nations Conference on Trade and Development was formed to prevent any restrictive business practice.[54]

    iii.            The WTO

WTO is an international organization or intergovernmental organization which is concerned with the international trade. In the era of Globalization, international trade is the reason for upliftment of society, increasing the GDP of a country etc., hence it is an important sector. It was established under Marrakesh Agreement which was signed by 123 countries. It is the largest economic based organization in the world.[55]

II.            Its effect in Indian Administration

India is a member of WTO, and if Indian administration goes against the notion of WTO, it can face sanctions. In the today’s world of Globalization, where economies are interdependent and require optimal export, if any sanction is put upon, then that nation’s whole purpose of economical growth will go down as well.

3.     ENVIRONMENTAL PROTECTION

In the present time, the climate is changing and heading toward a very uncertain direction.[56] World is now taking the issue of climate control very seriously,[57] and stepping out to convince the world collectively to take some measures. Here are the lists of Conventions, treaties and institutions of which India is a partner and which pertains to the Environmental protection.

I.            Forestry

1. International Tropical Timber Organisation (ITTO)[58]
2. The Cartagena Protocol on Bio-safety (TCPB)[59]
3. UN Convention to Combat Desertification (UNCCD)[60]
4. Commission on Sustainable Development (CSD)[61]
5. United Nations Framework Convention on Climate Change (UNCCD)[62]
6. International Network for Bamboo and Rattan (INBR)[63]
7. Asia Pacific Forestry Commission (APFC)[64]
8. Asia Pacific Forest Invasive Species Network (APFISN)[65]

 II.            Wildlife Conservation

1. Convention on International Trade in Endangered Species of Flora and Fauna (CITESFF)[66]
2. IUCN: World Conservation Union (IUCN)[67]
3. UNESCO World Heritage Program- Cultural and Natural Sites (UNESCO-WHP)[68]
4. Convention on Conservation of Migratory Species of Wild Animals (CCMSWA)[69]
5. International Whaling Commission (IWA)[70]

4.     INTELLECTUAL PROPERTY PROTECTION

Intellectual property can be said to be such kind of property which is in intangible form made out of human intellect.[71][72]  There are many types of such kind of property; the very well known are Copyrights, Patents, Trademarks, and trade secrets.[73] The very purpose the intellectual property laws are to encourage the people, the developer to create numerous intellectual goods.[74]

The Intellectual Property Laws prohibits such deceptions, as has been depicted in the image above given.

I.            Kinds of Intellectual Properties

There are various kinds of Intellectual Properties such as Patents, Copyright, Trademarks, Geographical Indications, Industrial Design Rights, Plant variety rights, and Trade dress.[76] Out of which the concerned properties has been elaborated:

       I.            Patents

There exist a problem for which a new approach is required, which can be done by the mean of inventions or discovery only. In order to encourage inventions or developments, Government reward certain rights to the inventor over its inventions, i.e., it is up to his decision to decide if such invention will used for selling, importing, exporting, exchanging or public disclosure of its fact.[77] The Indian Patent Law gets it historical root from the English Law,[78] it corresponds to the theory that it stimulates the technological progress,[79] and to encourage the flow of inventions.[80] There are restrictions in patent system, when it comes to Indian panorama. It is not considered in the public interest to grant the patent rights which do monopolization[81]

    II.            Copyright

  One of the main objects of copyright is to promote production of materials related to science, literature, arts etc. Copyright ensures that authors has the right over his creation but also promote and encourages others to use the idea of prior authors.[82] Copyrights protect the creator of the content, because they have invested their capital into it,[83] In India such protection is given for 60 years after the death of the creator of the content.[84]

 III.            Industrial Design Rights

In order to make any product appealing, the specification has to be top notched but with specification, its design also needs to be appealing. Thus from the perspective of IPR, such design need to be protected.[85] The present Indian Act governing the Industrial design is ‘The Design Act, 1911’.

 IV.            Trademark

The laws were developed in regards to the trade which can be traced back to the initial period of Industrial Revolution.[86] Normally these are the following functions of the Trade mark:

• It identifies goods of one trader and distinguish it from the goods sold by others
• It denotes that a trade mark bore by the product or good belongs to that single source only
• Such trade mark is crucial for selling of such goods.[87]

    V.            How it affected Indian Administration

In the year 2005, India became the member of an agreement on Trade-related Aspects of Intellectual Property (TRIPS)[88]. Due to which it now had become mandatory for India to bring Trade Mark Laws in accordance with that of TRIPS Agreement.[89] Later on India became party to the Paris Convention for Protection of Industrial Property in the year 1998,[90] which also had the same conditions. Now India has ‘The Trade Marks Act, 1999’, which is in conformity with both the treaties now. It reflected as to how this global administrative laws actually bended the ongoing law prevalent then, in the India.

5.     REFUGEE PROTECTION

The matter pertaining to the migration is important because it denotes the importance of sovereignty. According to which under the sovereign power of the state, state will decide if the non-citizen of the country shall be allowed to enter into the State or be compelled to leave.[91] After second World War, the matter of Refugee got politicized to such extent that UN’s agency ‘The International Refugee Organization (IRO)’ was getting funds only from the 18 countries out of 54 UN Members.[92] It is pertinent to understand that thousands of refugees were resettled under the jurisdiction of IRO.[93]

Later on, IRO was replaced by UN General Assembly to find the permanent solution to Refugees issue. Then The Statute of the United Nations High Commissioner for Refugees (UNHCR) was adopted, which is on 14^th December 1950.[94]

I.            India’s Stance over Refugee Crisis

It is pertinent to note that, India is not a party to the 1951 Refugee Convention or any of its protocol and do not have any national framework for the same.[95] However on contrary it respects the convention and moreover it does grant asylum to the large number of refugees from Neighboring countries.[96] Given below is the figure stating refugee status in India.

6.     CONCLUSION

It is pertinent to understand that, unlike at the times of Cold-War, present time doesn’t witness the bipolar distribution of powers, but all the nations are interconnected and intermingled. The main reason is the decaying of the sovereign attributes, after the introduction of International bodies. Now through collective efforts of nations, International bodies like U.N., can force a Nation to be working under certain standards. 

Considering this aspect, the present paper has first defined the meaning of Global Administrative System, then the meaning of Indian Administrative System because the research is based upon the contrast in between these attributes. List of total five international bodies has been referred, which authors believes to be the most influential bodies in their counterpart functions, which have been also explained in brief.

There are arrays of area which are being controlled by these institutions. Author has enlisted five such areas, which are having substantial effects upon an individual’s life as well as sovereign status of a country, which are (i) Arms Control, (ii) Trade Law, (iii) Environmental Protection, (iv) Intellectual Property Rights and (v) Refugee Protection. These areas of Global Laws are crucial and there was a need to research upon these aspects.

The enforceability part of the said rules, conventions, and treaties comes from Indian Constitution only. Article 51 and Article 253 empowers the Parliament to enforce such international instrument. Aspects like human right violation arising from such enforcement are well within the control of the Supreme Court and if any laws are violative of Part III of the Constitution, i.e., Fundamental Rights, then it will get struck down by the Hon’ble Court.

7.     SUGGESTIONS

It is settled that, most of the times International Treaties which have been ratified is for the welfare of the State as well as the World as a whole. Weapon of mass destruction, environmental pollution, etc are not only dangerous to a State but to the whole world. It is also settled that, enforcement of International treaty most of the times goes to vain because of inaccuracy and feasibility issues pertaining to the process of ‘Verification’. As has been stated Verification is the process in which the country gives the report as to about the implementation of any treaties or rules. Following are the suggestions that Author believes that implementing them will be feasible.

1. To give clear transparency, in related to the said issue, there shall be a Constitutional Amendment in Article 51 and Article 253 of the Constitution through which there shall be a 3^rd party neutral body appointed by the concerned international body to analyze and give the report for the purpose of Verification.
2. Introduction of the clause in bi-lateral or multi-lateral treaties, according to which all the concerned member state shall be subjected to the appointment of the 3^rd party neutral body for the purpose of Verification.
3. Such appointment of 3^rd party neutral body shall not subject to hap hazarding the National Security at stakes.

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