INTRODUCTION:

The law and the legal system are very important in any
civilization. In modern times, no one can imagine a society
without law and a legal system. Law is not only important for an
orderly social life but also essential for the very existence of
mankind. Therefore, it is important for everyone to understand
the meaning of law. In a layman's language, law can be
described as' a system of rules and regulations which a country
or society recognizes as binding on its citizens, which the
authorities may enforce, and violation of which attracts punitive
action. These laws are generally contained in the constitutions,
legislations, judicial decisions etc. Jurists and legal scholars
have not arrived at a unanimous definition of law. The problem
of defining law is not new as it goes back centuries. Some
jurists consider law as a 'divinely ordered rule' or as 'a
reflection of divine reasons'1. Law has also been defined from
philosophical theological, historical, social and realistic angles.
Same applies to the concept of International Law. International
law or the law of nations is primarily a system governing the
relationship of nations inter se, and for its apt appreciation it is
significant to know as to how international legal obligations are
enforced in national jurisdictions, more so in todays flat world.
In close relationship with this subject is the relationship
between international law and national law or municipal law or

1
http://www.cbseacademic.in/web_material/doc/Legal_Studies/XI_U2_Legal_Studie
s.pdf

domestic or internal law of nations (states), described by

reference to two contending concepts: monism and dualism.
MONISM:
Monism is the idea or the monist theory assumes that
international law and national law are simply two components
of a single legal system or body of knowledge, and regards
law as one entity. Both are interrelated parts of the one single
legal structure and form a unity. It is believed that both
originate from a single grundnorm. Mediately or immediately,
both are aimed at regulating the conduct of individuals. Hans
Kelsen, an Austrian jurist, was the chief exponent of the monist
school of thought. Monists propagate the superiority of
international law over national law in cases of conflict.
DUALISM:
Dualism is the position or the dualist theory assumes that
international law and internal law of states are two separate
and distinct legal systems.

Being different legal orders,

international law would not as such form part of the internal law
of a state. Where, in particular cases, rules of international law
apply within a state, they do so as a result of their adoption by
the internal law of the state. They apply as part of the internal
law of the state and not as international law. Dualism refrains
from any controversy as to supremacy of the one legal system
over the other. Each one is considered supreme in ones own
sphere and operates on a different level2.
2

Oppenheims International Law, (1992), Vol. I, p. 54

COMMON GROUND BETWEEN THE THEORIES:

The above theories rely upon the supposed consensual nature
of international law as against the non-consensual character of
national law. There is a distinction between treaties which are
in the nature of promises and national statutes which are in the
nature of commands. Therefore, it is indispensable that there
is a formal and substantive transformation from one kind to the
other. Nevertheless, the two instruments, that is, international
treaties and national statutes share a common legal character
insofar as they stipulate certain situations of fact which involve
certain

determinate

legal

consequences.

Monism

simply

envisages that international law takes priority, whereas dualism

maintains that each legal system deals with a subject matter in
its own way.
PRACTISE OF THE STATES:
Doctrine of incorporation and doctrine of transformation match
up to and are manifestations of monism (international law and
national law are parts of the same and single unified legal
system) and dualism (each operates in its own area of
competence), respectively. The distinction between the two
doctrines

is

that

international

law

international

law,

incorporation

into

national

whereas

law

automatically
just

because

transformation

adopts
it

is

requires

deliberate act on the part of the nation concerned. Under the

doctrine of incorporation, rules of international law are part of
national law unless excluded, that is, unless there is a clear
provision of national law precluding the use of a particular

international law rule by the national jurisdiction the automatic

adoption operates. Under the doctrine of transformation, rules
of international law are part of national law only if deliberately
included.
EFFECT OF INTERNATIONAL LAW IN INDIA:
Article 51(c) of the Constitution of India states that the State
shall endeavour to foster respect for international law and
treaty obligations in the dealings of organized peoples with one
another. It may be said that the distinction in article 51(c)
between international law and treaty obligations is that the
term international law refers to international customary law.
The acceptance of such an approach would mean that
customary international law is not incorporated into Indian
municipal law. In league with this approach is the contention
that article 51(c) reduces the position of international law in
India to a mere directive principle. Article 372(1) of the
Constitution provides that subject to the other provisions of the
Constitution, all the law in force in the territory of India
immediately before the commencement of the Constitution
shall continue in force therein until altered or repealed or
amended by a competent Legislature or other competent
authority. Thus, if there is any irreconcilable conflict between a
pre-Constitution law and a provision of the Constitution, the
latter shall prevail to that extent. The expression law in force
includes not only the enactments of the Indian Legislature, but
also the common law of the land which was being administered
by the courts in India, including the rules of English common
law. This leads to the conclusion that the common law doctrine

is applicable in India. Therefore, international law is enforceable

by Indian courts insofar as it is not inconsistent with any clear
and unequivocal or unambiguous Indian statutory law. Rules of
international law are not mere ethical rules, although it was
otherwise held by Justice Beg in A.D.M., Jabalpur v. Shivakant
Shukla3; the dissenting judgment of Justice Khanna rightly held
the view that if two constructions of the municipal law are
possible, the courts should lean in favour of adopting such
construction as would make the provisions of the municipal law
to be in harmony with the international law or treaty
obligations, and that the rule about the construction of
municipal law also holds good when construing the provisions
of the Constitution, and that a construction of the relevant
constitutional provisions was possible as would not bring them
in conflict with the Universal Declaration of Human Rights
(articles 8 and 9 right to an effective remedy and no
arbitrary arrest). The Declaration, not in itself legally binding,
much of its content can now be said to form part of customary
international law 4.
INTERNATIONAL TREATIES:

AIR 1976 SC 1207, 1291

Malcolm N. Shaw, International Law, (2003), p.260

Article 515 of the Constitution embodies the object of India in

the international arena.

But it does not lay down that

international treaties or agreements entered into by India shall

have the force of municipal law without appropriate legislation.
In other words, Indias obligations under an international treaty
cannot be enforced, unless such obligations are made part of
the law of this country by means of appropriate legislation. 6 It is
the power of the Executive to enter into treaties, the executive
power being coextensive with the legislative power and there
being no legislation on the subject, vide articles 73 and 246(1)
read with Entry 147 of the Union List.8 The executive power is
vested in the President, vide article 53, which may be exercised
by him through officers subordinate to him. By virtue of article
253,Parliament has exclusive power to make any law for
5

The State shall endeavour to

(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the
dealings of organized peoples with one another; and
(d) encourage settlement of international disputes by arbitration.

Civil Rights Vigilance Committee, SLSRC College of Law, Bangalore v.

Union of India, AIR 1983 Kant. 85

Entering into treaties and agreements with foreign countries and

implementing of treaties, agreements and conventions with foreign
countries.
Also see Entry 13 of the Union List: Participation in international
conferences, associations and other bodies and implementing of
decisions made thereat.

implementing any treaty. Article 253 is in conformity with the

object declared by article 51(c). Treaty-making, implementing
of treaties, etc., is a subject of Union legislation, under Entry 14
of the Union List. But it would have been difficult for the Union
to

implement

its

obligations

under

treaties

or

other

international agreements if it were not able to legislate with

respect to State.
CONCLUSION:
It emerges from the practice of states, discussed above, that
neither monism nor dualism represents exact position as
regards effecting international legal obligations in national
jurisdictions.

Neither

delegation

theory

of

monists

nor

transformation theory of dualists holds true in all situations.

Both the theories take immoderate stands. As a matter of fact,
international law does not determine which theory is to be
preferred. International law only requires that its rules are
respected and allows every state to decide for itself as to how
this has to be achieved. However, dualism appears to be
preferred concept on the ground, in comparison with monism.
International legal obligations are not always enforceable in the
national jurisdictions of England, the U.S. and India; national
courts give effect to international law only if it does not conflict
with clear and unambiguous internal law of the nation
concerned. Non-self-executing treaties in particular require
legislative action, that is, specific adoption of their provisions
into municipal law. The need of the hour is for a gradual
development of rapprochement between international legal
obligations and national jurisdictions. A time may come when

international law and national law will perfectly reconcile and

the dream of effective global law and world institutions fulfilled.