Guest Post: Indian Court embraces the Vienna

Convention on Law of Treaties

opiniojuris.org/2015/04/02/guest-post-indian-court-embraces-the-vienna-convention-on-law-of-treaties/

April 2, 2015

[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.

1/2
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.

2/2