CONCEPTUALIZE MONISM AND DUALISM: AN INDIAN PERSPECTIVE

PROJECT SUBMITTED TO:

Mr. Atif Khan

PROJECT SUBMITTED BY:

SIDHARATH BHARDWAJ

(SEMESTER IV)

ROLL NO.151

SECTION-B

SUBMITTED ON: 18.02.2015

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH

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ACKNOWLEDGMENTS

I feel highly elated to work on the project “Conceptualize monism and dualism: An Indian

perspective”. The practical realisation of the project has obligated the assistance of many

persons. Firstly I express my deepest gratitude towards Mr. Atif Khan, Faculty of Public

International Law, to provide me with the opportunity to work on this project. His able

guidanceship and supervision in terms of his lectures were of extreme help in understanding

and carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive

database resources in the library and for the internet facilities provided by the University.

Some typography or printing errors might have crept in, which are deeply regretted. I would

be grateful to receive comments and suggestions to further improve this project.

Sidharath Bhardwaj

Roll No. 151

Section B

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TABLE OF CONTENTS

Page numberAcknowledgement 2Research Methodology 4Introduction 5Monism 6Dualism 9Indian perspective of Monism and Dualism

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Role of Judiciary 14

Conclusion 15

References 17

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RESEARCH METHODOLOGY

Objective

To conceptualize monism and dualism

To Indian perspective of monism and dualism

Hypothesis

Monism is related to one this means international law and municipal law are one system of

law whereas Dualism means two so we can say that international law and municipal law are

two distinct systems of law.

Methodology

The nature of the study in this project is doctrinal and is primarily descriptive and analytical.

This project is largely based on secondary & electronic sources of data. Books & other

reference as guided by faculty of Public International Law are primarily helpful for the

completion of this project.

Research Questions

What is monistic theory or Monism?

What is Dualistic theory or Dualism?

Which theory applies in India and Indian perspective of Monism and Dualism.

Chapterisation

Chapter 1 has introduced the research project by talking about Monism. Chapter 2 has

focused on the Dualism and Chapter 3 has focused on Indian perspective of Monism and

Dualism.

Mode of Citation

19th edition blue book form of citation is used in this research project.

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Scope of Study

This whole paper does not deal with Monism and Dualism along with Indian perspective.

This research paper deals with concepts of monism and dualism separately and then it talks

about Indian perspective of these concepts.

INTRODUCTION

A problem of relationship between international law and municipal law is one of the most

controversial questions of legal theory. Originally, the relationship between the two laws was

a matter of theoretical importance i.e., whether International law and municipal law are parts

of a universal legal order or they form two distinct systems of law. But at present the question

has acquired practical significance as well.

There are two principal theories put forward by scholars on the relationship between

international law and municipal law: Monism and Dualism.

According to monism, international law and municipal law are the components of one system

of law in general. The theory of monism regards that both international law and municipal

law have a common underlying legal basis and it derives its origin from the law of nature

which binds equally the States and individuals. Accordingly, both State law and international

law ultimately regulate the conduct of individuals, one immediately and the other mediately,

though in the sphere of international law, the consequences of such conduct are attributed to

the State.

The theory of dualism grew out of nineteenth century positivist philosophy which

emphasized on the “will” of the state as the sole criterion for the creation of the rules of

international law. Under the dualist theory, international law and municipal law operate on

different levels. According to supporters of this theory, difference between international law

and municipal law lies in their subject-matter, sources and judicial origin.

India follows the dualist theory for the implementation of international law at domestic level1

In order to understand Indian perspective of monism and dualism we have to deal with

implementation of international law in India by which we can see the relationship of domestic

laws and international law in India that is monism and dualism.

1 Jolly Jeorge Vs. Bank of Cochin, AIR 1980 SC 470

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MONISTS

Monism is one of the theories advanced to explain the relationship between international and

domestic law. Exponents of this theory are referred to as monists. Monists hold that

International Law and State Law share a common origin-namely law. Thus, the duo is the

two branches of unified knowledge of law which are applicable to human community in some

way or the other. The broad thrust of the theory of monism is that both international law and

municipal law are facets of same phenomenon. Again, monists view international and

national law as part of a single legal order. Thus, International Law is directly applicable in

the national legal order. There is no need for any domestic implementing legislation;

international law is immediately applicable within national legal systems. Indeed, to monists,

international law is superior to national law.

MONISM

Monistic theory or monism was pronounced in the 18 th century. It was put forward by two

German scholars Moser and Martens. According to this doctrine there exists only one set of

legal system i.e., the domestic legal order. The exponents of this theory denied that

International law is a distinct body of law.

According to monism, municipal laws as well as international law are parts of one universal

legal system serving the needs of the human community in one way or the other. Monism

maintains that all laws are made for individuals only. While municipal law is binding on them

directly, international law is binding on them through states. Since both the laws are meant to

solve the problems of human beings in different areas; they both are related to each other.

According to exponents of monism since a state consists of individuals, rules of international

law are ultimately binding on them only like municipal law, which concerns with the conduct

and welfare of individuals. Secondly in both spheres, the law is essentially a command

binding upon the subjects of law independently of their will. Thirdly, monistic theory

maintains that international law and municipal law, far from being essentially different, must

be regarded as manifestations of single conception of law.

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The monists, most of whom belong to the natural law school, include Hugo Grotius, a Dutch

scholar and diplomat who is generally regarded as the father of the nationalist school of

natural law, Hans Kelsen; and Herschel Lauder Patch - all of whom have argued that the

international legal order is significant only as part of a universal legal order which comprises

the national legal order as well.

The chief protagonist of this theory is Kelsen. Other supporters of this theory are Lauterpacht,

Flitzmaurice and Starke. According to them, since the behavior of states is reducible to the

behavior of individuals representing the State, the alleged difference in subject matter

between the two systems cannot be considered a difference. Therefore the question of

primacy of one system over the other does not arise.

Some constitutional arrangements in Africa reflect the monist approach to the reception of

international law. For instance, the constitutions of former French colonies2 adhere to

monism. But, for the purpose of this research project, our attention will focus on three monist

African countries namely - Namibia, Senegal, and Democratic Republic of Congo. The

constitutional provisions of these countries vis-à-vis international law reception will now be

discussed.

Namibia- The status and role of both customary and conventional international law in the

municipal law of Namibia is regulated by the constitution. The latter explicitly recognizes

international law and its role and function in Namibian municipal law. The relevant

Article 114 of the constitution explicitly and unequivocally declares the following: Unless

otherwise provided by this constitution or Act of parliament, the general rules of public

international law and international agreements binding upon Namibia under this

constitution shall form part of the law of Namibia. The effect of this provision is to

accord both the general rules of public international law and international agreement

direct and automatic application in Namibian municipal law, subject to two main

qualifications. Firstly, the general rules of international law and international agreement

may be excluded from applying directly in municipal law by the Namibian constitution

itself.

Secondly, they may be excluded by an Act of parliament. But for these two qualifications,

the general rules of international law and treaties are directly incorporated into Namibian 2 See for example, Article 151 of the Constitution of Burkina Faso, 1991; Article 45 of the Constitution of Cameroon, 1992; Article 147 of the Constitution of Mali, 1992; Article 147 of the Constitution of the Republic of Benin; Article of 132 of the Constitution of the Central African Republic. All these constitutional provisions are modeled on Article 55 of the French Constitution of 1958.

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municipal law. These rules are directly enforceable by municipal institutions, particularly

the courts.

Senegal

Senegal is a monist country. This means that once a treaty is ratified by Senegal and

published at the domestic level, it automatically becomes part of the law of the land and

can be invoked as a cause of action before domestic courts. Thus, under Article 98 of the

Senegalese constitution, “treaties or agreements duly ratified shall upon their publication

have an authority superior to that of the laws, subject for each treaty and agreement, to its

application by the other party”.

The Democratic Republic of Congo

The Democratic Republic of Congo has a monistic legal regime. Thus, international

agreements and treaties to which it adhered or ratified have greater command than the

domestic laws. In effect, Article 215 of the constitution of the 18th February 2006

stipulates that

All the international agreements and conventions which have been lawfully concluded

have on publication, a higher authority than the law governing each agreement or

convention without prejudice to its application by the other party.

DUALISM

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This is another theory advanced to explain the relationship between International Law and

Domestic Law. At the heart of the theory of dualism lies the premise that international law

and municipal law are two separate and distinct orders, in their objects and spheres of

operation, such that the norms of one would not operate within the realm of the other without

a positive act of reception or transformation, as the case may be.

Dualists regard international and municipal law as separate entities, and municipal law can

only apply international law once it has been incorporated into the legal system of the

country. The incorporation of international agreements into the national legal system can be

achieved by formal adoption through a parliamentary procedure, through other political acts,

or given effect by the national courts. Monists regard international and municipal law as parts

of the same legal system .According to them municipal law is subservient to international

law. Dualism - or rather, the doctrine of transformation - for its part perceives international

law and national law as two distinct and independent legal orders, each having an

intrinsically and structurally distinct character. The two legal orders are separate and self-

contained spheres of legal action, and theoretically there should be no point of conflict

between them. Since they are separate legal systems, international law would as such not

form part of the municipal law of the state.3 Dualism argues that the two legal systems are

distinct in nature. First, the two legal systems are different in the particular relations that they

govern: state law deals with the social relations between individuals, and international law

regulates the social relations between states, who alone are subject to it.4In the second, sense,

Triepel argues and is widely supported by other dualists, that the two systems have different

juridical origins.

The source of municipal law is the will of the state itself, while the source of international

law is the common will of states. Thirdly, according to Anzillotti, the two legal systems are

differentiated by the fundamental principles by which each is conditioned. Municipal law is

conditioned by the norm that legislation is to be obeyed, whereas international law is

conditioned by the pacta sunt servanda principle. The latter principle commands that

agreements between states are to be respected. This principle is at the heart of modern

3 This view has been propounded by positivist theorists such as Hegel, Anzilotti and Triepel, who have invoked a consensual approach to international law to argue that the two legal systems are distinct in nature.4 Lindholt has noted that the classical dualist theory is based on the perception that two types of law regulate different subjects, where national law operates with individual subjects while international has the states as its subject”

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international law, especially treaty law, and underlies the basis for performance of treaty

obligations.

Because of this consensual factor, Anzillotti concludes that the two systems are so distinct

that no possible conflict is possible. In case of any conflict, national law prevails; this is

predicated on state sovereignty, which gives the right to the state to determine which rules of

international law are to have effect in a municipal sphere. Current constitutional

arrangements in Africa also reflect the dualist approach to the application of international law

in municipal law. The constitution of the former British colonies5 adhere to dualism;

international law does not become part of or have the force of law in national legal system

unless it has been expressly given that force by a national measure, usually a positive

legislative Act or Act of parliament. However, for the purpose of this research project, we

will concentrate on three dualist constitutions of African Countries, namely: Nigeria, Malawi

and Zimbabwe.

The dualist constitutional provision of these countries will now be examined.

Nigeria

Nigeria as one of the common law countries necessarily adopts an approach that is reflective

of the common law tradition. Accordingly, section 12(1) of the 1999 constitution of the

Federal Republic of Nigeria states authoritatively that: No treaty between the federation and

any other country shall have the force of law except to the extent to which any such treaty has

been enacted into law by the national Assembly. In interpreting the above provision of the

constitution, the Supreme Court of Nigeria has observed in the case of General Sani Abacha

and Others v . Chief Gani Fawehinmi that an international treaty entered into by one

government of Nigeria does not become binding until enacted into law by the National

Assembly and before its enactment into law by the National Assembly. It has no such force

of law as to make its provision justifiable in our courts.

According to Ejiwunmi, JSC in that case: It is therefore manifest that no matter how

beneficial to the country or the citizenry, an international treaty to which Nigeria has become 5 See for example, Article 75 of the Constitution of the Republic of Ghana 1979. Article 231 of the Constitution of South Africa, 1996; Article 211 of the Constitution of the Republic of Malawi, 1995; Article 123 of the Constitution of the Federal Republic of Uganda; Article 12 of the Constitution of the Federal Republic of Nigeria 1999; Article 111(B) of the Constitution of the Republic of Zimbabwe, 1993; Article 238(4) of the Constitution of the Kingdom of Swaziland.

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a signatory may be it remains unenforceable, if it is not enacted into the law of the country by

the National Assembly. The above analysis clearly illustrates the dualist position of Nigeria

vis-à-vis the application of international law in a domestic legal order.

Malawi

On the authority of Article 211(1) of the Constitution of the Republic of Malawi, 1995;

Malawi is a dualist country. By that constitutional provision, “any international

agreement ratified by an Act of parliament shall form part of the law of the Republic if so

provided for in the Act of parliament ratifying the agreement.” The tenor of this provision

has been re-echoed by the courts of Malawi. For instance, in the case of Chafukzya

Chichana v. The Republic, counsel for the applicant had argued; inter-alia that the

applicant’s right s were also provided under the African Charter to which Malawi was a

party. The court, however, rejected this contention based on the fact that no specific

legislation had been passed to incorporate the Charter into domestic law.

Zimbabwe

Another illustration of the dualist theory on the application of international law to municipal

law is that provided by section 111(B) of the Constitution of Zimbabwe. According to that

section of the Zimbabwe’s Constitution, “an international treaty is, subject to approval by

parliament and does not form part of the law of Zimbabwe unless it has been incorporated

into the law by or under an Act of parliament.” The dictum of Judge Gowora in the

Zimbabwe case of Richard Thomas Etheredge v. The Minister of State for National Security

Responsible for Lands, Land Reform And Resettlement And Another, accommodates the

dualist orientation of the constitution of Zimbabwe. In that case the judge stated categorically

that: The supreme law in this jurisdiction is our constitution and it has not made provisions

for these courts to be subject to the tribunal. The above dictum which suggests that

international law and municipal law is each supreme in its sphere of operation shows the

dualist orientation of Zimbabwe.

The above theories need to be approached with caution. This is because, in practical terms,

they may not purely determine the relationship between national and international law. This

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is posited on a number of reasons. Firstly, the internal application of International Law in

general and treaties in particular is always conditioned by a rule of municipal law. The basic

principle in most legal systems is that the internal application of treaties is governed by

domestic constitutional law. Second is the practical approach of national courts. Even in

monist countries, courts sometimes fail to effectuate treaties which are binding under

international law; an example of this is the non-self-executing treaties in United State law.

Conversely, in dualist systems, the court may sometimes give limited effect even to

unincorporated treaties. For example, British courts’ use of the European Convention on

Human Rights (ECHR) before its incorporation into United Kingdom (UK) law. In countries

like the UK, courts rely on the principle that legislation should, wherever possible, be so

interpreted as not to conflict with the international obligations of the state. In the final

analysis, the theories are relevant only in the specific context of customary, but not

conventional, international law. The real concern, it is submitted, is how international

standards can be infused or, rather, incorporated into state law to reinforce the effectiveness

of the national legal system. Oftentimes, national legal rules are not well-defined and are

sometimes inadequate in respect of addressing practical legal questions. But this is not to say

the theories are insignificant: indeed, on the contrary, they are important. They continue to

illuminate the interaction between international law and municipal law. Most importantly,

they will increasingly have some impact on efforts to find practical solutions on the role of

international law in the municipal legal sphere.

INDIAN PERSPECTIVE OF MONISM AND DUALISM:

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IMPLEMENTATION OF INTERNATIONAL LAW IN INDIA:

Central government’s enjoys the power to implement international conventions:

List I (Union List) in the 7th schedule defines the ambit of the Central government to make

laws on various subjects of national importance. With regard to foreign affairs entries 13 and

14 of the list (stated below as 1 and 2 respectively) make it amply clear that the power to

implement international treaties rests with the parliament.

“Participation in international conferences, associations and other bodies and implementing

the decisions made thereat”

“Entering into treaties and agreements with foreign countries and implementing of treaties,

agreements and conventions with foreign countries.”

The powers of the Union Executive are derived from that of the Union Legislature and are

vested, as per article 53, in the President of India. Article 73 of the Constitution confers upon

the executive powers over which the Parliament has the power to legislate. As stated in entry

14 of the Union list, the Central government, represented by the Executive, may enter into

various treaties with other countries. However this does not imply that upon entering into

international treaties, the international principles and norms enunciated in them become

enforceable in India. This is because of the Dualist doctrine followed by the Indian

constitution.

International principles must be incorporated in the Indian legal system by a legislation

enacted by the Parliament which can be inferred by reading entry 14 in the Union list.

Besides, article 253 of the Constitution which reads as the “Parliament 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 other country or countries or any decision made at any

international conference, association or other body” entrusts the power to enact legislation for

even the states as and when required with regard to international law. Not only is this power

of implementation, enjoyed by the legislature stated in the Union List but the same has been

upheld by the Supreme Court in Jolly Jeorge Vs. Bank of Cochin and Gramophone Company

of India Ltd. v. BirendraBahadurPandey . Further, in the former case India has been

recognised as a follower of the Dualist approach for incorporation of international laws.

In Jolly George Varghese and other v. The Bank of Cochin, AIR 1980 SC 470 the question

before the Court was whether it was justified to subject debtors to imprisonment so as to

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force them to execute their contractual obligations. Addressing the question Krishna Iyer, J,

interpreted 51 (Proviso) and Order 21, Rule 37, Civil Procedure Code in a way that it was

reconciled with Article 11 of the ICCPR but nevertheless held that municipal laws could not

be ignored even though they were in conflict with international conventions.

ROLE OF JUDICIARY:

The question which looms large is what will be the stance of the Supreme Court when

international law contradicts domestic law?

The answer to the above question is to be found in the decision given by the Court in

Gramaphone Co. of India Ltd. v. Birendar Bahadur Pandey and Ors. Wherein it upheld

that national law shall prevail over international law in case there is a conflict between the

two. This decision has cast doubts over the administration of justice in a country.

Is the judiciary justified in adhering inflexibly to domestic law when international law

opposes that policy?

In such cases it is essential for the judiciary to examine the spirit of law and deliver

judgements in keeping with the principles of Justice, Equality and Good Conscience. This

shall be practiced even if the domestic law has to be modified (by way of being given a new

interpretation) to suit international legal standards if that is the only way to meet the ends of

justice. The judiciary has also at some instances interpreted laws to make them in agreement

with international principles. In Githa Hariharan V. Reserve Bank of India, the

constitutionality of sec. 6(a) of the Hindu minority and Guardianship Act, 1956 was

challenged. This section demoted the mother to an inferior position in regard to the

guardianship of a minor only on the grounds of sex. The Court in upholding the Convention

on the Elimination of all forms of Discrimination Against Women, 1979 and the Beijing

Declaration directed the states to take measures to prevent any such discrimination practice

and further went on to state that “the interpretation that we have placed on Section 6(a) of the

HMG Act gives effect to the principles contained in these instruments. The domestic courts

are under an obligation to give due regard to International Conventions and Norms for

constructing domestic laws when there is no inconsistency between them.”

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The Indian judiciary has brought about a perfect harmony between the two legal systems that

has helped the domestic laws evolve and grow to address the needs of a society that’s

developing even faster than the march of time.

CONCLUSION

Is the view that reality consists of one fundamental ultimate essence. Monists accept that the

internal and international legal systems form a unity. Both national legal rules and

international rules that a state has accepted, for example by way of a treaty, determine

whether actions are legal or illegal. In most so-called "monist" states, a distinction between

international law in the form of treaties, and other international law, e.g., customary

international law or jus cogens, is made; such states may thus be partly monist and partly

dualist.

In a pure monist state, international law does not need to be translated into national law it is

just incorporated and have effects automatically in national or domestic laws. The act of

ratifying an international treaty immediately incorporates the law into national law; and

customary international law is treated as part of national law as well. International law can be

directly applied by a national judge, and can be directly invoked by citizens, just as if it were

national law. A judge can declare a national rule invalid if it contradicts international rules

because, in some states, the latter have priority. In other states, like in Germany, treaties have

the same effect as legislation, and by the principle of lex posterior, only take precedence over

national legislation enacted prior to their ratification. In its most pure form, monism dictates

that national law that contradicts international law is null and void, even if it predates

international law, and even if it is the constitution. From a human rights point of view, for

example, this has some advantages. Suppose a country has accepted a human rights treaty -

the International Covenant on Civil and Political Rights for instance - but some of its national

laws limit the freedom of the press. A citizen of that country, who is being prosecuted by his

state for violating this national law, can invoke the human rights treaty in a national

courtroom and can ask the judge to apply this treaty and to decide that the national law is

invalid. He or she does not have to wait for national law that translates international law. His

or her government can, after all, be negligent or even unwilling to translate. The treaty was

perhaps only accepted for political reasons, in order to please donor-countries for example.

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"So when someone in Holland feels his human rights are being violated he can go to a Dutch

judge and the judge must apply the law of the Convention. He must apply international law

even if it is not in conformity with Dutch law".

Dualists emphasize the difference between national and international law, and require the

translation of the latter into the former. Without this translation, international law does not

exist as law. International law has to be national law as well, or it is no law at all. If a state

accepts a treaty but does not adapt its national law in order to conform to the treaty or does

not create a national law explicitly incorporating the treaty, then it violates international law.

But one cannot claim that the treaty has become part of national law. Citizens cannot rely on

it and judges cannot apply it. National laws that contradict it remain in force. According to

dualists, national judges never apply international law, only international law that has been

translated into national law.

In India dualism prevail over the monism as the municipal law prevails over the international

law as it has been described above. Therefore it is concluded that the India supports the

Dualism.

"International law as such can confer no rights cognisable in the municipal courts. It is only

insofar as the rules of international law are recognized as included in the rules of municipal

law that they are allowed in municipal courts to give rise to rights and obligations".

The supremacy of international law is a rule in dualist systems as it is in monist systems. Sir

Hersch Lauterpacht pointed out the Court's determination to discourage the evasion of

international obligations, and its repeated affirmation of: the self-evident principle of

international law that a State cannot invoke its municipal law as the reason for the non-

fulfillment of its international obligations.

If international law is not directly applicable, as is the case in monist systems, then it must be

translated into national law, and existing national law that contradicts international law must

be "translated away". It must be modified or eliminated in order to conform to international

law. Again, from a human rights point of view, if a human rights treaty is accepted for purely

political reasons, and states do not intend to fully translate it into national law or to take a

monist view on international law, then the implementation of the treaty is very uncertain.

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REFERENCES

Dr. S.K. Kapoor, International Law and Human Rights, 18th Ed., Central Law Agency S.K. Verma, An Introduction to Public International Life, 2nd Ed., Satyam Law

International Dr. H.O.Agarwal, International Law & Human Rights, 20th Ed., Central law

Publications

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