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DUALISTIC THEORY

PROJECT SUBMITTED TO:

KUMARI NITU

PROJECT SUBMITTED BY:

HARIOM

(SEMESTER IV ‘A’)

Enroll.NO.;-CUSB1813125033

SECTION-A

CENTRAL UNIVERSITY OF SOUTH BIHAR

GAYA (BIHAR)

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ACKNOWLEDGMENTS

I feel highly elated to work on the project “Dualistic theory”. The practical realisation of the
project has obligated the assistance of many persons. Firstly I express my deepest gratitude
towards Kumari Nitu, 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.

Hariom

Enroll. No.;-CUSB1813125033

Section B

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RESEARCH METHODOLOGY

Objective
• To conceptualize dualism
• To Indian perspective dualism

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 Dualistic theory or Dualism?

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

Scope of Study

This whole paper does not deal with Dualism along with Indian perspective. This research
paper deals with concepts of dualism separately and then it talks about Indian perspective of
these concepts.

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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.

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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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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
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.2 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. 3In 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

2 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.

3 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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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
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 colonies4 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

4 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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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
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.

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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 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.

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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.”

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

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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
l 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 laPublications

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