INTRODUCTION
Laws within the country’s territory are known as municipal law. Laws that became binding on the states and international organisations when dealing with other states, organisations, people, and entities are known as international law. There are six theories: Monistic theory or Monism, Dualistic theory or Dualism, Theory of Specific Adoption, Theory of Transformation, Theory of Delegation, and Theory of Harmonization or Co-ordination. Monism theory states that there is no need to implement international law to domestic law, the former can be directly applied within the country. Delegation theory is based on Monism theory and states that constitutional provisions are transferred to states’ constitutions. These regulations determine the date and mode of entry into force of international treaties and conventions. Dualism theory states international law and national law are different and the country must implement the former within its territory. Transformation theory is based on Dualist theory which states that Treaties are essentially promises that must be changed into municipal statutes, essentially orders. Specific Adoption theory which is also based on Dualist theory states that until a sovereign state expressly adopts international law through enactments, the law is not applicable in that state. Harmonization theory states that since both local and international laws are intended to address issues facing people, they do not supersede one another. Judges should strive to harmonize both systems instead of elevating one over the other to resolve any contradictions between them. This theory makes sense because, historically, national law and international law have focused on comparatively different issues: municipal law has focused on relationships between people, while international law has focused on relationships between states. However, as the Harmonization theory indicates, their ultimate objective is to safeguard people’s well-being, which is why their functions are now convergent such as laws about the environment, business, and human rights.
MONISTIC THEORY AND CRITICISM
Renowned Austrian jurist and legal philosopher Hans Kelsen was one of the leading advocates of monism. In his well-known book ‘Pure Theory of Law,’ Kelsen made the case that all laws, domestic and foreign, belong to a single hierarchical legal system. As stated by Kelsen:
- ‘International law is supreme’: According to Kelsen, ‘international law’ is superior to municipal law in the hierarchy. According to him, the fundamental framework from which domestic laws are derived is international law.
- Unified legal system: He argued that both domestic and international legal systems constitute a single body of law, with the primacy of international norms, rejecting the dualist perspective of international law.
- Grundnorm: The foundation of Kelsen’s theory is the idea of the ‘grundnorm,’ also known as the basic norm, which serves as the ultimate authority for all local and international legal norms. This reflects the belief that the legal system, even within states, is based on international law.
Criticism of Monistic theory is that there are two distinct legal systems: municipal law and international law. Every state has sovereign authority. States abide by international law only because they agree to be bound by it.
DUALISTIC THEORY AND CRITICISM
Italian jurist Dionisio Anzilotti is regarded as one of the main proponents of the dualist theory. His significant writings and judicial roles, in particular, have left a lasting legacy of dualist thought in international law.
- Legal orders are separate: According to Anzilotti, there are two different legal orders that each regulate a different domain: municipal law and international law. He thought that while municipal law governed people within a state, international law governed relations between states.
- Treaties and domestic law: Anzilotti contends that unless the national legislature incorporates international treaties, they do not simply imply a role in national law. He underlined that to guarantee the coherence of both legal systems, international law must be translated into domestic law.
- State sovereignty: The foundation of Anzilotti’s dualism is the idea that every state is entitled to its legal system and the freedom to accept or reject international norms. Thus, states continue to have the authority to decide how much of international law is applicable at home.
Criticism of Dualist theory is that it is untrue to say that only States are bound by international law. ‘International law’ applies to ‘states’, ‘individuals’, and some ‘non-state entities’ in the modern era. The people who formulated the state will are the only ones whose will it is.
DUALIST THEORY IN INDIA
Dualistic theory is primarily applied in India. It implies international law, including treaties and conventions, must be expressly incorporated by Parliament into national legislation for it to be enforceable under India’s domestic legal system. The fundamental components of this strategy are supported by judicial interpretations and are ingrained in the Indian Constitution. Constitutional provisions that show Dualism:
The Indian Constitution has several provisions that demonstrate the nation’s commitment to the dualist theory:
- Article 51(c): The State is encouraged to promote respect for international law and treaty obligations by Article 51(c) Of the Directive Principles of State Policy. Nonetheless, the Directive Principles lack legal force and cannot be directly enforced in court because they are non-justiciable. Nonetheless, this article acts as a foundational tenet for India’s foreign policymaking and behaviour.
- Article 253: India’s dualist practice is based on this Article. It gives Parliament the sole authority to pass legislation implementing international conventions, treaties, or agreements. Put another way, Parliament must enact relevant legislation before an international treaty or convention can be enforced in India. By demonstrating that international law does not inevitably become a part of domestic law without legislative intervention, this supports the dualist theory.
- Separation of Powers: The Indian Constitution divides the powers of the legislature and the executive. The power of the legislature is to make laws and international treaties enforceable domestically, while the executive is responsible for signing treaties.
Cases:
When India became a party to the International Covenant on Civil and Political Rights (ICCPR), the Supreme Court of India held in the 1980 case of Jolly George Verghese v. Bank of Cochin. The Covenant did not become a part of Indian law unless it was incorporated by legislation. The court stressed that unless there is a specific domestic law that gives them effect, international treaties that India has signed are not enforceable domestically. Vishaka v. State of Rajasthan (1997) Supreme Court used ‘the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)’, an ‘international treaty’ that India had signed, in the absence of domestic legislation related to sexual harassment at workplaces. The Court used CEDAW as a framework to issue binding guidelines even though it had not been incorporated into Indian law. This case is noteworthy because it highlights the dualist approach by demonstrating how Indian courts can rely on concepts of ‘international law’ in situations when domestic legislation is absent. This is because the provisions of CEDAW were not directly enforceable in the absence of domestic legislation. The Supreme Court has cited global environmental principles such as sustainable development and cases about environmental protection. Typically, these allusions are made in connection with national legislation, like the ‘Environment Protection Act of 1986’, which incorporated numerous international environmental obligations into our country’s law. Vellore Citizens Welfare Forum v. Union of India (1996): The Court held that Indian courts could apply customary international law unless it conflicted with domestic laws. India’s dualist strategy has occasionally come under fire for postponing fulfilling its commitments under international treaties. For example, despite India’s signature of multiple international conventions on labour rights, environmental protection, and human rights, there is sometimes a void between the enforcement of international obligations and domestic laws. This strategy is thought to be essential for protecting India’s constitutional sovereignty and making sure that domestic laws and international obligations are consistent.
CONCLUSION
In India, judicial interpretation, the dualist approach, and constitutional provisions all influence how international law and municipal (domestic) law interact. India adopts a dualist approach, which means that unless Parliament passes legislation to give them effect, international treaties and agreements are not immediately applicable within the municipal legal system. By requiring specific legislative action to incorporate international obligations into Indian law, this principle guarantees the sovereignty of India’s domestic legal system over those obligations. The Indian Supreme Court has been crucial in striking a balance between the application of international law and native legal norms. Indian courts frequently interpret international conventions and treaties, particularly when there is a legislative vacuum or uncertainty in domestic law. However, unless international law is incorporated into the domestic framework, municipal law takes precedence over it in conflict situations. In conclusion, even though India acknowledges the importance of international law, how it is applied in local government matters is determined by the legislative and judicial systems. The dualist framework permits the incorporation of international norms when necessary, but it maintains the primacy of the Indian legal system. This maintains India’s sovereignty while fostering international cooperation by ensuring that its foreign obligations are compliant with domestic legislation.
Author(s) Name: Isha Diwakar Madavi (Maharashtra National Law University Nagpur)
