Executive Accountability to Legislature in the Foreign Policy Making: The Case of India and USA

The problem of the control of foreign policy has been a perennial source of anguish for democracies. If Parliament is the premier representative institution through which the sovereignty of the people is given concrete expression, nowhere has that sovereignty been more at risk in recent times than in the matter of signing international treaties and incurring international obligations. As India increasingly integrates into the global order by signing treaties, joining more multilateral institutions with sanction-binding power and entering into bilateral arrangements, it is becoming increasingly clear that Parliament’s role in incurring these international obligations is quite minimal. This is despite the fact that the Indian Constitution expressly places treaty-making powers within the jurisdiction of Parliament. India is a parliamentary democracy in which the executive must be responsible and answerable to the Parliament in all the ways. But regarding the foreign policy decisions of the country executive accountability to legislature is nebulous. At the same time in the US Presidential system the executive is not only answerable, but also needs ratification of the legislature, especially the Senate, in all foreign policy decisions of the country. This chapter is analysing the degree of executive accountability to legislature in the foreign policy making of India and USA

At the time of Indo-US Civilian Nuclear Deal the question of parliamentary control over executive in foreign policy making become a central point of debate in India. This context raised a serious question that if foreign policy becomes the property of the executive, what happens to democratic control? In our own times this issue has acquired special urgency due to increasing trans-national threats and the influence of various actors in the foreign policy making including multinational corporations. In addition to this certain contemporary factors like globalisation, increasing attention of the public and the decline of one party dominant system were also accelerated the significance of the role of parliament in foreign policy decision making.

a)      Globalisation of the country’s economy: Unlike in the past, foreign policy matters now are seen to affect the lives of citizens and are becoming electoral issues. In this regard, analysts point out how in the 1994 assembly elections, the then ruling Congress had to face poll reversals in the two southern states of Karnataka and Andhra Pradesh. Among the reasons for the reversals, a noteworthy one was said to be the condition of the fishermen who had been badly affected following the central government's decision to allow multinational corporations into deep-sea fishing; this became an important electoral issue espoused by the opposition.

b)      Increasing attention of the public: Competing mass media will report all important developments related to foreign policy and it have a very great impact on the people. So today foreign policy achievements or failures can make or unmake a government. This belief, analysts point out, has become strong after I.K. Gujral became Prime Minister. It has been argued that Mr Gujral's significant success as a foreign minister in the past turned out to be the single most important point in his favour at the time of his selection  as a  United Front leader.

c)      Decline of One party dominant system: The consolidation of coalition politics in the country which has supplanted the 'one-party dominance' of the Congress accelerated the significance of parliament in foreign policy making. No longer can the government readily take Parliament for granted since it cannot count on an overwhelming majority there. The government of the day has to strive for consensus by taking into confidence all the major political parties. Here  Parliament, in the process, comes into its own as a deliberative body

Indian Constitution expressly places treaty-making powers within the jurisdiction of Parliament. In much traditional political theory that delineates the separation of powers between the legislature and executive, treaty-making powers were largely left to the discretion of the executive. The legal tradition that India inherited from the British, by and large, upheld this position. A famous decision of the Privy Council in the case of Attorney General for Canada versus Attorney General for Ontario in 1937 argued that “Parliament no doubt has constitutional control over the executive, but it cannot be disputed that the creation of obligations undertaken in treaties and the assent to their form and quality are functions of the executive alone”.  This judgement went on to say that once such obligations are created, they bind the state against other contracting parties, but Parliament may refuse to perform them and thus leave the state in default.

Indian Parliament and the Making of Foreign Policy

Under Article 246 of the Constitution, Parliament is given exclusive power to make laws with respect to matters enumerated in List I of the Seventh Schedule of the Constitution. This list includes items such as “entering into treaties and agreements with foreign countries and implementation of treaties, agreements and conventions with foreign countries”. Thus, it is fairly obvious that treaty making is within the purview of Parliament and is not limited to the executive. But the de facto experience of entering into treaties since independence has left the matter solely to the executive. Parliament has not enacted any laws that regulate the manner in which the executive shall sign or ratify international treaties and covenants. Nor does Parliament decide the manner in which these treaties should be implemented, except in cases where such implementation requires Parliament to enact a law. Indeed, not only has Parliament not adopted any formal procedure for ratification, it has also explicitly rejected the requirement that treaties be ratified. As early as 1960, the speaker of the Lok Sabha declared:

“A number of treaties have been entered into so far, and they have not been brought up for ratification here. It does not prevent the government from bringing up any particular treaty for ratification before signing it, but it is not obligatory to do so”.

There have been intermittent attempts to formally bind the executive to a ratification procedure. In 1993, then Minister of Defence George Fernandez introduced a bill to amend Article 253 of the Constitution stipulating that treaties and conventions be ratified by not less than half of the membership of each house of Parliament and by the legislatures of not less than half of the states. During the 1990s, two other private members’ bills were introduced to this effect. Unfortunately, like Fernandes’ bill, they were not even brought up for consideration.

As far as we can determine, during the last two decades Parliament has only once debated whether it should legally ratify treaties. This was a debate conducted in the Rajya Sabha in response to a private member’s bill introduced by M.A. Baby, in light of several WTO-related agreements signed by the government. The overwhelming sentiment of the house was that such ratification was unnecessary and would potentially lead to adverse consequences. In fact, in one of the longest speeches during the debate, Pranab Mukherjee argued more or less that if Parliament were obliged to ratify treaties, many treaties that had been of enormous benefit to India would not have been signed. Thus, historically there has been widespread sentiment that politicising the signing of international treaties by subjecting them to a ratification procedure would weaken India’s position rather than strengthen it. It could be argued the fact that Parliament has not taken an active role in monitoring the executive on the matter of international treaties does not imply that the executive has been given a free hand by the legislature. In a parliamentary system with a party government, presumably no government will enter into treaties that do not have significant support within their own parties, and by implication, among the legislators. In principle, this political dynamic should function. In practice, it appears that political parties, even of the government in power, are not widely consulted. There is a great deal of secrecy surrounding international negotiations and members of most political parties admit that they learn of international treaties only after the fact.

It has also generally been the case that many treaties of importance are brought to the attention of Parliament, but the government does not make a decision unless the sentiments of Parliament are clear on the matter. The Comprehensive Nuclear-Test-Ban Treaty has often been debated in Parliament and successive governments have used their assessment of parliamentary sentiment on the matter not to sign the treaty. The other side of the story is the WTO treaties signed in 1994 on which there was relatively little prior discussion in Parliament as a whole. The interesting analytical puzzle is this: Would a formal ratification procedure strengthen India’s hand in international negotiations? Answer to this question is that a formal ratification procedure will strengthen the bargaining power of the state. The American government uses the argument that a treaty will have to be ratified by the United States Congress as a bargaining tool. In the Indian case there is very little evidence that Parliament and the executive have strategically joined hands to strengthen India’s bargaining position.

Another reason for not being too alarmed at the lack of parliamentary oversight of treaties is that most international agreements and treaties can be made effective only by incorporating them into domestic legislation. For example, a treaty that entails ceding territory would require amending the Constitution. But other treaties require incorporation into the national legal system via legislation approved by Parliament—for instance, many of the provisions that accrue from joining the WTO. It could be argued that even if Parliament did not have a role in signing a treaty, it would exercise its sovereign authority to decide whether or not an obligation stemming from an international agreement would become Indian law. Theoretically speaking, Parliament can, at that stage, refuse to incorporate the provisions of a treaty into domestic law and render the treaty ineffective. After all, the TRIPS agreements required that India’s domestic patent laws be modified and the 1970 Patents Act be amended. The attempt to change India’s patent law failed to pass muster in 1995, although it succeeded in doing so later. But, as the argument goes, the very fact that treaties require corresponding domestic legislation means that the authority of Parliament cannot be by-passed.

In principle, this argument has merits, but in practice, a treaty already signed is something of a fait accompli. It is true that Parliament refused on many occasions to incorporate the requirements of WTO-related agreements into domestic law; it is also equally true that it did so just before the provisions of these treaties were to be enforced. In fact, the whole tenor of Parliament’s posture on the TRIPS agreement, for example, was against the provisions of the treaty—at least in public—until as late as 1997. The story of TRIPS-related legislation in India is sobering. The draft provisions of the TRIPS agreement ran counter to India’s official negotiating position as outlined in a background paper submitted by a negotiating committee in 1989. The government then decided to refer the matter to a parliamentary standing committee of the Ministry of Commerce consisting of 40 MPs drawn from all political parties. In 1993, the standing committee submitted a report that vehemently opposed most of the provisions and stipulations of the draft legislation. It was, for instance, opposed to granting product patents, granting patents for 20 years and various conditions attached to the transition period for developing countries. But despite such overwhelming scepticism from the parliamentary standing committee, the government signed the TRIPS agreement without again consulting the committee or even Parliament itself.

For the subject under discussion, the substantive merits or demerits of the TRIPS agreement are beside the point. The crucial point is that the government signed a major agreement disregarding the recommendations of a parliamentary standing committee. This raises two questions. First, what is the point of such standing committees if their deliberations have no impact on the government and do not compel it to seek wider parliamentary consultation? Second, the government signed the TRIPS agreement despite the prevailing parliamentary sentiment against it at the time.

The fact of the matter is that the impact of international treaties on domestic policy is vastly increasing in both scale and scope. It is manifestly the case that many of the international treaties that India has signed during the last decade have profound ramifications not only for economic policy, but also for the structure of the Indian polity as well. Let us take one example. Under the Indian system of federalism, certain items are placed within the jurisdiction of the state government, some within the jurisdiction of the Central government, and some are on a concurrent list. Notwithstanding this separation of jurisdictions, Parliament, under Article 253 of the Constitution has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any country or countries or any decision made at an international conference, associated or other body.

This provision, if extended to all domains, has the odd effect of effectively allowing the provisions of an international treaty to trump the basic architecture of the Constitution. For instance, under the allocation of subjects in the Constitution, agriculture is considered a state subject. A case can be made that India’s signing of the agriculture-related provisions of the WTO not only has an impact on Indian economic policy, but also transforms the nature of Indian federalism. In effect, crucial parts of agricultural policy, a matter left to the states by the Constitution, is now being determined by international agreements that have not been discussed, let alone authorized, by state legislatures. The point is that the lack of parliamentary involvement in formulating, authorizing and ratifying international treaties may also diminish its capacity to define the terms of Indian federalism.

The Case of USA

Regarding the United States, no treaty that a president signs with his counterparts in the world can come into force unless the American Senate upholds it. Even closer to home, Nepal and Bangladesh have similar provisions in their Constitutions. Subject to the advice and consent role of the U.S. Senate, the President of the United States negotiates treaties with foreign nations, but treaties enter into force only if ratified by two-thirds of the Senate. The US has signed the CTBT, but not ratified it. On 13 October 1999, the United States Senate rejected ratification of the CTBT. President Barack Obama stated during his 2008 election campaign that "As president, I will reach out to the Senate to secure the ratification of the CTBT at the earliest practical date."  The President is also Commander in Chief of the United States Armed Forces, and as such has broad authority over the armed forces; however only Congress has authority to declare war, and the civilian and military budget is written by the Congress. The United States Secretary of State is the Foreign Minister of the United States and is the primary conductor of state-to-state diplomacy. Both the Secretary of State and ambassadors are appointed by the President, with the advice and consent of the Senate. Congress also has power to regulate commerce with foreign nations.

In the United States, the term treaty is used in a more restricted legal sense than in international law. U.S. law distinguishes what it calls treaties, which are derived from the Treaty Clause of the United States Constitution, from Congressional-Executive Agreements and Executive Agreements. All three classes are considered treaties under international law; they are distinct only from the perspective of internal United States law.The distinctions are primarily concerning their method of ratification (by 2/3rds of the Senate, by normal legislative process, or by the President alone) and their relationship to domestic law. Article II, Section 2 of the United States Constitution grants power to the President to make treaties with the "advice and consent" of two-thirds of the Senate. This is different from normal legislation which requires approval by simple majorities in both the Senate and the House of Representatives. However, throughout U.S. history, the President has also made "international agreements" through Congressional-Executive Agreements that are ratified with only a majority from both houses of Congress, or sole-Executive Agreements made by the President alone. Though the constitution does not expressly provide for any alternative procedure and although some noted constitutional scholars, such as Laurence Tribe, believe that Congressional-Executive Agreements are unconstitutional, the Supreme Court of the United States has considered these agreements to be valid, and that any disagreements are a political question for the executive and legislative branches to work out amongst themselves. In addition, U.S. law distinguishes between self-executing treaties, which do not require additional legislative action, and non-self-executing treaties which do require the enactment of new laws.

The United States takes a different view from many other nations concerning the relationship between international and domestic law. Unlike nations that view international treaties and statutes as always superseding domestic law, international agreements instead are incorporated into the body of U.S. federal law. In Reid v. Covert, the US Supreme Court specified that any international agreement inconsistent with the U.S. Constitution is void under domestic law - the same as any other federal law in conflict with the Constitution - and while the Supreme Court could potentially rule a treaty provision to be unconstitutional and void under domestic law, it has never done so.

Conclusion

Multilateral agreements, global accords and international covenants will increasingly rely on treaties and treaty making to bring about changes that will directly or indirectly affect millions of people around the world. Such treaties obliterate the distinction between domestic and foreign policy. Much of parliamentary deference to the executive on treaties has its origins in an environment where the distinction between domestic and foreign policy could, to a certain degree, be maintained. In a changed environment, where international agreements determine the range of policy choices on issues from agriculture and tariffs to the structure of property rights, Parliament can maintain an important legislative role only if it is an effective part of the treaty-making process. The process of formulating and signing international treaties is posing a significant challenge to all representative institutions. Parliaments of Australia, New Zealand and the United Kingdom are all debating procedures to democratize treaty negotiations in a manner that does not entirely by-pass Parliament. Admittedly, as most parliamentarians in India acknowledge, subjecting treaties to parliamentary supervision is not an easy task. This makes international negotiations more complex and potentially endless as Parliament must have the institutional and infrastructural capacities to participate in such a process, and often its interests lie in not democratizing the treaty-making process. Treaties can, after all, give parliaments cover to push through legislation in the face of political deadlock. But Parliament cannot avoid the thorny question of disciplining international treaty making by the executive. It will have to consider issues such as: How does Parliament make treaty making subject to accountability? How does Parliament create clear norms that require prior consultation with Parliament on particular classes of treaties? Should Parliament legislate something for a formal ratification proposal? Parliament’s viability as a key decision-making body will depend upon finding some procedures that address these concerns.

B.R. Ambedkar, generally acknowledged to be the father of the Indian Constitution, had warned the Constituent Assembly:

I feel, however, good a Constitution may be, it is sure to turn out bad because those who are called to work, happen to be a bad lot...The working of the Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of state such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the state depends are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave?

And in that observation lies the future of India’s Parliament

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