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Monism And Dualism In International Law Pdf

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This is an issue with important technical ramifications, namely the relationship between international and domestic law, also known as the "systems report". It is not natural that the problem should arise, it must be understood that international law is not intended to be and is not self-sufficient.

The application of international law in Nigeria and the façade of dualism

India has traditionally been described as a dualist country in relation to its engagement with international law. Formally at least, the allocation of the power of assumption of international obligations rests with the Executive, while its domestic implementation requires Parliamentary sanction. In this paper, I argue that while India remains formally committed to dualism, in practice it exhibits many monist tendencies. Once international law obligations are assumed, they are transported into domestic law through various channels, not all of which require Parliamentary approval.

Further, the Indian judiciary also applies non-domesticated international law obligations in various ways that reflect shades of monism.

This is a preview of subscription content, access via your institution. Rent this article via DeepDyve. See A. Supreme Court has remarked that she sees the growing utility of looking to international law, especially when domestic issues have international dimensions. Bogdandy, supra note 12, at ; F. The first is within the domain of the executive, and the second within the domain of the legislature.

For treaty obligations to have effect domestically, the executive is required to take the assent of Parliament through formal law. In fact, while introducing the draft article for discussion, Dr. Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has 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.

Provided that the executive power referred to in sub clause a shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. Article 73 has been interpreted by the Indian Supreme Court in Ram Javaya Kapur v State of Punjab , AIR SC , to hold that the Executive can exercise power over matters in the Union List even in the absence of legislation to the effect as long as it does not act in violation of any law.

We may, however, hasten to add that this Court, however, at times for the purpose of interpretation of statute has taken into consideration not only the treaties in which India is a party but also declarations, covenants and resolutions passed in different International Conferences.

Constituent Assembly Debates, 25 August , vol. Even this limited ex-post scrutiny procedure is rarely used in practice. In the current Lok Sabha, for example, there has not been even a single instance of discussion of rules promulgated under Parliamentary legislations. See V. At the least, the ratification of an international legal instrument imposes international obligations on the country.

Similar concerns regarding the lack of adequate legislative scrutiny over the assumption of international law obligations, have been raised in other common law countries that follow the British model of allocation of powers between the Legislature and Executive.

See F. In particular, it was argued that the legislation ought to have been brought under Article , after consultation with the states. Scholars have argued that the principles that the Court adopted, including their specific instantiation, were not yet part of customary international law. See, eg , Anderson, supra note Elisabeth v Harwan Investment and Trading Pvt. Sea Success , 9 SCC This case was referred to a larger bench which handed down its decision in , but did not address the issue framed.

Aparna Chandra, Fostering Respect? It is beyond the scope of this paper to present a full critique of the extant international legal order. Scholarship around such critique, particularly from subaltern and Critical Legal Studies perspectives, is abundant. For a third world critique of international law, see B.

Correspondence to Aparna Chandra. Reprints and Permissions. Chandra, A. India and international law: formal dualism, functional monism.

Indian Journal of International Law 57, 25—45 Download citation. Published : 22 November Issue Date : June Search SpringerLink Search. Abstract India has traditionally been described as a dualist country in relation to its engagement with international law. Notes 1. Somek, ibid.

See Bogdandy, supra note Article provides that: Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has 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. Constitution of India, art 1 Subject to the provisions of this Constitution, the executive power of the Union shall extend— a to the matters with respect to which Parliament has power to make laws; and b to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement: Provided that the executive power referred to in sub clause a shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.

Commission to Review the Working of the Constitution, supra note A similar point is made in Michael Anderson, surpa note Rights and permissions Reprints and Permissions. About this article. Cite this article Chandra, A.

India and international law: formal dualism, functional monism

The terms monism and dualism are used to describe two different theories of the relationship between international law and national law. Many states, perhaps most, are partly monist and partly dualist in their actual application of international law in their national systems. 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 a pure monist state, international law does not need to be translated into national law. It is simply incorporated and has effect 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.

Veriana Josepha B. Countries in the world in the activity always in touch and relate with other countries. This causes the applicable national law a country will always be associated also with international law. It spawned two big flow of the relationship between national law and international law, namely the flow of monism sees both national law and international law are two aspects of the same from one system, and the flow of dualism considers that international law and national laws is a two fields laws are different and independent from one another. According to the theory of transformation, the rules of international law to be valid and honored as national norms have to go through the transformation process or over forms, either formally or substantially.

India has traditionally been described as a dualist country in relation to its engagement with international law. Formally at least, the allocation of the power of assumption of international obligations rests with the Executive, while its domestic implementation requires Parliamentary sanction. In this paper, I argue that while India remains formally committed to dualism, in practice it exhibits many monist tendencies. Once international law obligations are assumed, they are transported into domestic law through various channels, not all of which require Parliamentary approval. Further, the Indian judiciary also applies non-domesticated international law obligations in various ways that reflect shades of monism. This is a preview of subscription content, access via your institution.


The terms monism and dualism are used to describe two different theories of the relationship between international law and national law. Many states, perhaps.


II. Domestic Interaction with International Law

Monism and dualism were originally conceived as two opposing theorizations of the relationship between international law and domestic law. The subject of considerable debate in the first half of the 20th century, monism and dualism are regarded by many modern scholars as having limited explanatory power as theories because of their failure to capture how international law works within states in practice. Notwithstanding their decline as theories, monism and dualism retain power as analytical tools. They act as consistent starting points for examinations of the relationship between international and domestic law.

Don Greig is a man of many parts. Alongside his distinguished contribution to public international law and the law of contract, the arts and soccer are very important to him. I have been privileged to be one of his colleagues on and off the soccer pitch. I offer this essay, on the relationship between our two fields, with gratitude and respect.

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Monism and dualism in international law

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Aaron W. 19.03.2021 at 16:41

Keywords Monism 4 Dualism 4 Domestic implementation of international law 4 October 28, ,\ebezpieczni.org[.

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Section 12 1 of the Amended Constitution of the Federal Republic of Nigeria the Constitution provides that no treaty shall have force of law in Nigeria unless it has been enacted into a law of the National Assembly.

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