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

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

TABLE OF CONTENTS

Page number
Acknowledgement
2
Research Methodology
4
Introduction
5
Monism
6
Dualism
9
Indian perspective of Monism and 13
Dualism
Role of Judiciary
14
Conclusion
15
References

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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.

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
5

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.

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--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.
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.
7

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
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
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
8

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 selfcontained 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
9

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 colonies 5 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.

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.
10

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
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--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 applicants 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 Zimbabwes 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.

11

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 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.

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INDIAN PERSPECTIVE OF MONISM AND DUALISM:

IMPLEMENTATION OF INTERNATIONAL LAW IN INDIA:
Central governments 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.

13

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
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.
14

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 thats
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.

15

"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 nonfulfillment 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.

16

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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