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 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.
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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 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.
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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. 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-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.” 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 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 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.
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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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