UNION OF INDIA & Ors. v. AGRICAS LLP ETC & Ors.

separately and cannot have effect on or overrule the other. Consequently, the municipal laws and international laws can operate simultaneously as they regulate different subject matters. International law is between sovereign States, while the municipal law applies within the State and regulates legal relationship between the citizens/subjects inter se and the citizen/subject and the State. Monistic legal systems include international treaties in domestic law. Monism takes the form of assertion of the supremacy of the international law even within the national sphere, with the understanding and belief that an individual is a subject of international law. International norms provide the basic norms for the national legal order, and both are a part of the same systems of norms. Most jurists draw distinction between ‘direct application’ of treaties in domestic law, and national legal systems that mandate and require ‘act of transformation’ for an international treaty to apply and be a part of domestic law. ‘Direct application’ means and mandates that the treaty norms, either wholly or to some extent, are directly treated as norms of domestic law and enjoy the statutory law status by default in the domestic legal system.

The term ‘direct application’ will also cover situations in which government or different levels of government utilise treaty norms as part of domestic jurisprudence and is not limited to situations in which private parties can sue on the basis of the treaty norms. There is distinction between direct application and ‘invocability’. ‘Act of transformation’ principle means and implies that an international treaty is not directly applicable in the domestic law system and requires provision in the domestic rules before it is applied. ‘Transformation’ is a word of wide amplitude and does not refer to mere implementation as it includes the right of the country to adopt, amend or modify the treaty language into domestic jurisprudence. The ‘act of transformation’ is different from ‘direct application’ as in the former the treaty is not received and treated as part of domestic jurisprudence until it is published and made part of the domestic jurisdiction in the same manner as other law. There is great diversity of national constitutional systems regarding international treaty application. [Paras 25, 27-30, 32][406-A, D-G; 407-A-H] UNION OF INDIA AND OTHERS v. AGRICAS LLP 381

2.3 It would be now appropriate to refer to the principle of ‘invocation’. Invocability in simple terms refers to justiciability; admissibility of a claim before the national courts. It is not connected with the defence or merits of the defence. In case where an ‘act of transformation’ is required, treaties may partially or entirely become part of the domestic law. Where the treaty or portion thereof become a part of the domestic law by ‘act of transformation’, it is obvious that only the part incorporated or transformed into domestic law is invocable and justiciable and not the parts that are not codified into domestic law. However, invocability can embrace several ideas which are intertwined and is of specific concern in cases of constitutions allowing direct application. Here ‘invocability’ is a generic term which means to embrace a small inventory of means of judicial control over the use in a particular law suit of the direct applicability of the treaty. As in case of ‘act of transformation’, even in direct application cases, some jurisdictions accept the principle of partial direct application and, therefore, the treaty is directly applicable for some purposes and not others. [Para 33][410-D-G] Status of Treaties in Domestic Legal System; A Policy Analysis Essay by Professor John H. Jackson – referred to.