Black money case, Treaty and International law (Jus Cogens)

This article explores principles of customary international law, namely jus cogens which can be useful in action against corruption and black money case which has been contested in the Supreme Court of India.

Background:
The Supreme Court in the case of Ram Jethmalani & Ors vs Union Of India & Ors on 4th July 2011 ordered an SIT to be formed to pursue black money which has been stashed abroad.

[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]W[/dropcap]hile laying down the judgment, SC vide para 60 stated the following “Article 31, “General Rule of Interpretation”, of the Vienna Convention of the Law of Treaties, 1969 provides that a “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” While India is not a party to the Vienna Convention, it contains many principles of customary international law, and the principle of interpretation, of Article 31 of the Vienna Convention, provides a broad guideline as to what could be an appropriate manner of interpreting a treaty in the Indian context also.”

Fundamental principle of Treaty: Customary International Law
The study of International law starts with Customary international law, rather than with treaties and conventions which are mentioned first in Article 38.

There are two reasons for this. First, it is because, to a large extent, the making of treaties and conventions is itself regulated by rules of customary international law. Therefore, it is important to understand what is customary international law before turning to treaties.

Second, it is because customary international law is general in scope.  International custom is, as a matter of principle, binding on all States and also on international organizations.

So, customary international law is also called “general international law”.

This stands in contrast to treaties because treaties are only binding on their contracting parties, i.e. on the States or international organizations that have explicitly consented to them.

Also in contrast to treaties which are written documents, custom is, as such, not contained in any specific legal document.

Both in domestic law and in international law, custom floats in the air as it were.

Peremptory norm of general international law:
[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]P[/dropcap]eremptory norm of international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having same character.

Norms that can be derogated from by agreement between contracting parties are called jus dispositivum, they can be freely disposed of – while norms that cannot be set aside by mutual agreement are peremptory, they are jus cogens.

This dichotomy exists in every domestic legal system; some legal provisions apply in the absence of any particular contract, while other legal provisions apply despite any contract.

And contracts, that do not conform with those peremptory provisions cannot be upheld in a court of law, they are invalid.

Peremptory norms embody the notion of public order.  Jus cogens means that despite their sovereignty, states are not entitled to validly consent and make treaties whatever they wish. Jus cogens is out of the reach of states. It is above them and they cannot escape it by concluding treaties which would pretend to dispose it.

Fight against Corruption as part Jus Cogens norms:
[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]A[/dropcap] few scholars have argued that public corruption should be considered an international crime against humanity, suggesting that by implication that norm should be treated as peremptory.  “Grand corruption seems to amount to a paradigmatic example of what should be considered as international crime.”   Recognizing the norm against public corruption as a peremptory norm illuminates an important feature of jus cogens itself. Public corruption offends the state-subject fiduciary relation irrespective of whether the corrupt acts are large or small in scope: a low-level public official who steals a pittance or accepts a petty bribe violates the peremptory norm against corruption, just as a head of state violates jus cogens by draining the state treasury for private gain. The prohibition against corruption thus illustrates the important principle that the scope of jus cogens is not limited exclusively to acts such as military aggression or genocide that inflict harm on a massive scale.

To conclude:
Purposive approach in line with customary principles of International law and good faith should form the basis of treaty interpretation rather than interpreting treaty which is incompatible to its objective. For instance, the confidentiality reason as argued in black money case referencing to  Indo-German DTAA fails the test of customary international law by giving shadow protection to tax evaders which isn’t a custom anywhere and objective of good faith in that treaty is being put to litmus test.