By
Geeta Dalal
When a nation accepts any international treaty or
convention, it partly accepts to surrender a part of its autonomy.
However, on no case it must be presumed that the nation has
surrendered its sovereignty and constitutional safeguards.
When a law is enacted in a particular country it is
mostly based upon its social, economic, and political ideologies and
notions. Obviously these ideologies and notions vary from nation to
nation and are essentially different in various societies. This is
the main reason why we face a “conflict of laws” as laws of two
sovereign nations conflict with each other.
At the international level, this situation is
generally taken care of by the “private international law”.
Nations try to reconcile the two conflicting law and apply the same
to the given situation in most appropriate manner.
An important aspect of the private international law
is that it is territorial oriented and society specific. Thus, the
law of the country in question prevails, if there is a conflict
between the two laws of the different sovereign nations.
On the other hand, we have the “public
international law” that is based upon international harmonisation
principle. Nations across the world try to be part of a process where
a harmonised international law is accepted as a base model for
formulating national laws. This way conflict among laws of various
nations can be minimised.
The treaties and conventions entered under the
banner of a common platform like World Trade Organisation (WTO) bind
these “member countries” and they cannot plead that the same is
against the notions and ideologies of their nation. That is why
countries are very cautious while entering into various treaties and
conventions.
However, in no case such treaties and conventions
can take away the constitutional rights and sovereign functions of a
nation. For instance, under the WTO it is not allowed to discriminate
among member nation’s goods and services. However, there are some
well established exceptions to this rule.
For instance, India has recently allowed
preferential market access to indigenously manufactured telecom
equipments of India. India
has justified its preferential market access (PMA) policy for
domestic telecom equipments manufacturers due to telecom
security concerns. Thus, no nations would comply with its
international obligations to compromise its national security and
sovereignty.
Another example in this regard can be found in the
form of pharmaceutical companies business in India. Recently Novartis
lost the patent claims of Novartis AG's cancer treatment drug Glivec
in Supreme Court of India. The Supreme Court of India held that
Novartis product is not patentable in India as per Indian Patent Act,
1970. Similarly, US
pharmaceutical company Merck Sharp and Dohme’s (MSD) appealed
before division bench of Delhi High Court when a single Judge of
Delhi High Court refused to restrain an Indian firm Glenmark from
manufacturing and selling anti-diabetes drugs Zita and Zita-Met
through an interim order. Both these cases reaffirm the public
interest aspect of pharmaceutical business segment in India.
The treaties and conventions entered at the
international level are not automatically incorporated in the
“municipal legal system”, though some countries endorse the
concept of “automatic incorporation” of the same.
In India, we have to take an independent action
of “legislation” under article 253 of the Constitution of
India to make the treaties and conventions functional. This shows the
legislative superiority of Parliament over the respective States.
This is the reason why the Madrid protocol was not
applicable to India till now. The International
registration of trademarks under Madrid Agreement and Madrid Protocol
has attracted the attention of international companies and trademark
stakeholders. However, the Madrid
Agreement and Madrid Protocol and its applicability and
implementation in India were long due.
It is only now that India
submitted instrument of accession to the Madrid protocol for
international registration of marks. The treaty will enter into
force with respect to India on July 8, 2013.
There is nothing wrong if India keeps in mind the
public interest element while implementing the international treaty
and conventions principles in its municipal legislations. Otherwise,
India courts would always maintain the balance by giving Indian
sovereignty and constitution precedence over the conflicting
international treaty and convention.
