International Law in Domestic Courts:

The “Dualist” and “Monist” Theories

- By the principles that govern international law, states are committed to respect and fulfill
their treaty and other international law obligations (recall “pacta sunt servanda”)

 And a state cannot cite its own domestic laws as an excuse/ justification for it
violating one of its international law obligations

- But international law doesn’t dictate exactly how a state should incorporate its
international law obligations into its domestic legal structure, internal legal system—this
matter is left for each state to decide, taking into consideration their views on the
relationship between international and domestic law

- 2 doctrines/approaches have developed, either written into states’ constitutions or just

followed in practice: Dualism and Monism

The “dualist” concept (or “pluralist” view) on the relationship b/w intl law + domestic law

- Proponents of “dualism” think that international law and domestic law don’t operate on
the same plane/ sphere, so there can’t really be any conflict between the two, since they
don’t have the same object—internal provisions are applied exclusively between the
state’s borders and can’t intervene in the international legal system

- An international treaty would only be effective at an international level—in order for it to

be applied domestically in a contracting state, that state would first have to adopt the
provisions of the treaty into a national provision (i.e. some type of domestic legislation)

 So-called “nationalization” of the treaty: the international provisions of the treaty Commented [1]:
pass through a transformation, which allows them to be applied as an internal
regulation, part of the domestic law and not international law

- The subjects of law aren’t the same in both legal systems, each system’s application is
well determined (one corresponds to the relationship between states, while the other to
interpersonal relationships within a state). International law can’t dictate the relationships
between individuals at an internal level

- Dualist theory stresses that domestic and international law are two separate legal systems
  The 2 systems are different through their source of law—internal law originates in
the will of the state itself, while international law is based on the common will of
contracting states Commented [2]:

 The basis for the mandatory force of internal law provisions is ultimately the
constitution; for international law it is probably ultimately the principle of pacta
sunt servanda (at least as far as treaty law goes) Commented [3]:

 International law provisions can’t influence internal law’s validity and vice versa

 Communication between the 2 systems is possible, but only via a specific

procedure—international law provision is introduced into internal law by an
internal provision that recognizes/ adopts/ incorporates the international law
provision

- 2 additional things to keep in mind about dualist theory:

 Historically it’s a pretty significant doctrine—developed in a time where

international law almost exclusively inter-state. But remember over the last few
decades international law gradually addressing itself more and more to individuals
and other non-state actors

 From a practical point of view, internal and international law do intersect—for the
most part it’s up to the executives and courts of the states to interpret and apply
international law while acting (eg Osama Bin Laden article from first class) Commented [4]:

The “monist” concept of international and domestic law

- Sees international law and domestic law as part of the same system, not operating in
different spheres

- Stresses the “unity” of legal order

- According to the monist theory, international law provisions apply directly on a state’s
internal legal order—international law applies immediately, without having to be
admitted or transformed within the internal legal system of the member states

- Monist approach says that international law and domestic law operate in the same sphere,
with a super-ordinate and sub-ordinate relationship (doesn’t actually say which one will
trump in case of conflict—can be international law that takes precedence, or can be
domestic law that takes precedence)
 - Main thing is that international provisions are immediately applicable and enforceable in
domestic legal systems, without necessity to “nationalize” the international provisions

- Monists maintain a unitary view of the law as a whole and are opposed to strict division
between international and domestic law

Where do most states fall?

- Think of a spectrum/ line, with pure dualism and pure monism as the 2 ends

- Most states fall somewhere on this spectrum, not necessarily following strict dualist
approach or strict monist approach. And states can change approach depending on
circumstances

- Seen most clearly in cases in domestic courts of a state that might involve international
law issues—will the court be open to referring to international law to help decide the
case? How does the court view international law? Does the state think its domestic laws
are more advanced, better equipped than international law on the topic?

A cursory look at the practice of India in relation to

international law would be pertinent here. The application of
international law in the municipal sphere in India can be
understood through the interpretations by the courts in its
various decisions. India’s approach to international law can be
looked at from two perspectives – Indian law vis-a-vis treaties
and Indian law vis-a-vis international customs. India follows
the dualist theory of international law. Therefore, international
law principles and norms cannot be invoked in municipal
courts without being expressly incorporated into the domestic
law. The courts have held that in the light of the provisions of
Article 51 [1] treaties to which India is an assenting party
should be implemented in good faith, but at the same time,
the executive cannot be directed to follow the treaty in
absence of a domestic law. However, paradoxically treaties
are considered self executing, that is, they apply in the
municipal sphere automatically, except where it requires an
amendment to the Constitution or an existing law, or where a
new law is required to be enacted. Therefore, the Courts can
take aid of the treaty principles not inconsistent with the
provisions of laws of India. [2] Customary international law, on Commented [5]:

the other hand, is not considered to become part of municipal

law automatically. Therefore, where there is a conflict
between municipal law and customary international law, the
former will prevail. [3] Nevertheless, the courts have played Commented [6]:

an active role in the implementation of India’s international

obligations and have taken cognizance of both treaty as well
as customary principles of international law in cases involving
violations of human rights or questions of environmental
law. [4] Although Article 51 mandates respect for international
law, it is not an enforceable Article. Article 253 confers
exclusive power on the Parliament with respect to
international affairs. But the Constitution contains no express
provision settling the relation and status of international law in
Indian courts. This “silence" has given the flexibility to courts
to implement international law in a progressive and measured
manner.

With the changing scope of the concept of sovereignty,

international law is covering more spheres of law even at the
domestic level. Most of trade related laws are now being
governed by international law and mechanism. The influence
of international law is not strictly confined to trade law. It
reaches out to all walks of global concern including human
rights and environmental law. The world is moving towards a
world community, especially fortified by the rapid development
of technology and the consequent globalisation and
interdependence. The co-operation of the nation-States in
order to maximise the benefits for all combined with the drive
to develop has led to the increasing influence of international
law. The increasing global interdependence is unavoidable
and compliance with international becomes necessary both in
national and international interest.
India is implementing its international law obligations steadily
and effectively. India is raising power and the growing
influence and stature also adds greater responsibility. India is
the largest democracy in the world where rights are cherished
and respected, and with resources and capabilities to work
and develop all fields of human endeavour. Compliance with
international law brings a great deal of benefits to the country,
and along with challenges. India is definitely is doing well in
the regard and facing up international challenges with élan
and is set to do better in future.