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India and international law: formal dualism, functional monism

Indian Journal of International Law

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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. I argue that this departure from dualism is problematic since it removes much needed Parliamentary scrutiny, and results in a lack of executive accountability, erosion of federalism, the loss of value of legal pluralism, and the amplification of international law’s democratic deficits.

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  1. See A. M. Slaughter & W Burke-White, The Future of International Law is Domestic (or, the European Way of Law), 47 Harvard Intl LJ (2006) 327.

  2. Secretary-General’s High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, U.N. Doc. A/59/565 (2 Dec 2004) 2.

  3. Mattias Kumm, The Legitimacy of International Law: A Constitutional Framework of Analysis, 15 European J Intl L (2004) 907, 913.

  4. United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, article 2(7); Kumm, ibid.

  5. Philip Allott, The Emerging Universal Legal System, in Nijman & Nollkaemper (eds.), New Perspectives on the Divide Between National and International Law (OUP, New York, 2007) 80.

  6. Ian Brownlie, Principles of International Law, 5th edn (Clarendon Press, Oxford, 1998) 31–33; Curtis A. Bradley, Breard, Our Dualist Constitution, and the Internationalist Conception, 51(3) Stanford L Rev (1999) 529, 530; John Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis, 86 American J Intl L (1992) 310, 311.

  7. Hans Kelsen, Sovereignty, reprinted in Malcolm Evens and Patrick Capps (ed.), International Law, Vol 1, (Ashgate Publishing, Farnham, 2009) 3; Farooq Hassan, The Doctrine of Incorporation: New Vistas for the Enforcement of International Human Rights?, 5 Human Rights Quarterly (1983) 68, 79; T. M. Franck & A. K. Thiruvengadam, International Law and Constitution-Making, Chinese J Intl L (2003) 467, 470.

  8. Ibid.

  9. See Ian Brownlie, supra note 6, at 33; Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harvard L Rev (1987) 853, 864.

  10. Harold Koh, Why do Nations Obey International Law, 106 Yale LJ (1997) 2599, 2604–2608; Janne Nijman & Andre Nollkaemper, Introduction, in Nijman & Nollkaemper (eds.), New Perspectives on the Divide Between National and International Law (OUP, New York, 2007) 6–10.

  11. Alexander Somek, Monism: A Tale of the Undead, University of Iowa Legal Studies Research Paper (2010) (remaking on how these ‘intellectual relics…from a different age’ have been in recent times ‘reformulated… in a new vocabulary’). Examples of this type of scholarship are Mattias Kumm, Constitutional Democracy Encounters International Law: Terms of Engagement, in S. Choudhry (ed), The Migration of Constitutional Ideas (CUP, New York, 2007); Armin von Bogdandy, Pluralism, Direct Effect, and the Ultimate Say: On the Relationship between International and Domestic Constitutional Law, 6 Intl J Constitutional L (2008) 397.

  12. Somek, ibid.; Allott, supra note 5, at 80.

  13. For example, Justice Sandra Day O’Connor of the U.S. Supreme Court has remarked that she sees the growing utility of looking to international law, especially when domestic issues have international dimensions. Justice Sandra Day O’Connor, Remarks at the Southern Center for International Studies, October 28, 2003, <>. See also Daniel Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 Yale LJ 1490 (2006).

  14. See Bogdandy, supra note 12.

  15. Vicki Jackson, Constitutional Engagement in a Transnational Era (OUP, NY, 2010) 46.

  16. John O’ Sullivan, Op-Ed., High Court Opposites Dazzling Off the Bench, Chicago Sun-Times, October 25 2005. See also Gráinne de Búrca & Oliver Gerstenberg, The Denationalization of Constitutional Law, 47 Harvard J Intl L (2006) 243, 245; Jonathan Turley, Dualistic Values in the Age of International Legisprudence, 44 Hastings LJ (1993) 185, 186.

  17. David Mednicoff, The Importance of Being Quasi-Democratic—The Domestication of International Human Rights in American and Arab Politics, 38 Victoria Univ Wellington L Rev (2007) 317, 317–318. See also John McGinnis, Foreign to Our Constitution, 100 North Western Univ L Rev (2006) 303, 312–316; Bogdandy, supra note 12, at 412; Moravscik, In Defence of the “Democratic Deficit”: Reassessing Legitimacy in the European Union, 40 J Common Market Stud (2002) 603.

  18. Bogdandy, supra note 12, at 400; F. Francioni, International Law as a Common Language for National Courts, 36 Texas Intl L J (2001) 587; Kumm, supra note 12.

  19. Eileen Denza, The Relationship Between International and Domestic Law, in Malcolm Evans, International Law, 3rd edn (OUP, NY, 2010) 417–418.

  20. Antonio Cassese, International Law, 2nd edn (OUP, 2005) 236.

  21. See, eg, Attorney General for Canada v Attorney General for Ontario, [1937] AC 326 (Privy Council) (‘…there is a distinction between the formation of international obligations through treaty and its performance. 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. This is the position within the British Empire’).

  22. See, eg, Cassese, supra note 21, at 223–224; Attorney General for Canada v Attorney General for Ontario, [1937] AC 326 (Privy Council); See also R v Jones (Margaret), [2006] UKHL 16 (UK).

  23. Constitution of India, art 51 (Providing that the ‘state should endeavour to (a) promote international peace and security, (b) maintain just and honourable relations between nations, (c) foster respect for international law and treaty obligations in the dealing of organized people with one another; and (d) encourage the settlement of international disputes by arbitration’).

  24. Article 51 is in Part IV of the Constitution, dealing with Directive Principles of State Policy (“DPSP”). As per Article 37, DPSPs are ‘fundamental in the governance of the country’ but ‘shall not be enforceable by any court.’

  25. In fact, while introducing the draft article for discussion, Dr. Ambedkar, the Chairperson of the Drafting Committee, stated that, ‘[t]he propositions contained in this new article are so simple that it seems to be super-arrogation to try to explain them to the House by any lengthy speech.’ Constituent Assembly Debates, Vol VII (Govt of India, Lok Sabha Secretariat, New Delhi, 1948–49) 595.

  26. B. Shiva Rao, The Framing of India’s Constitution: Select Documents, Vol 2 (Indian Institute of Public Administration, New Delhi, 1967) 150.

  27. Ibid.

  28. Article 246 provides that the federal Legislature ‘has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule.’ Entry 14 of this List provides Parliament with competence over ‘[e]ntering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.’

  29. Entry 13, Union List.

  30. Article 253 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.

  31. VS Mani, Effectuation of International Law in the Municipal Legal Order—The Law and Practice in India, 5 Asian Yrbk Intl L (1997) 162–163.

  32. Constitution of India, art 73:

    1. (1)

      Subject to the provisions of this Constitution, the executive power of the Union shall extend—

      1. (a)

        to the matters with respect to which Parliament has power to make laws; and

      2. (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.

  33. Article 73 has been interpreted by the Indian Supreme Court in Ram Javaya Kapur v State of Punjab, AIR 1955 SC 549, 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.

  34. Union of India v Azadi Bachao Andolan, (2004) 10 SCC 1. See also Franck & Thiruvengadam, supra note 7; Rajeev Dhavan, Introduction—Indian Governance and Treaties: The Advent of the WTO <>.

  35. Mani, supra note 31, at 161–162.

  36. Maganbhai Ishwarbhai Patel v Union of India, (1970) 3 SCC 400.

  37. Jolly George Varghese v Bank of Cochin, AIR 1980 SC 470.

  38. See National Commission to Review the Working of the Constitution, A Consultation Paper on Treaty-Making Power under our Constitution (2001), <>.

  39. [1937] AC 326 (Privy Council).

  40. See Maganbhai Ishwarbhai Patel v Union of India, (1970) 3 SCC 400 (J. C. Shah, concurring) (rejecting the ‘argument raised at the Bar that power to make treaty or to implement a treaty, agreement or convention with a foreign State can only be exercised under authority of law’).

  41. See, eg, Bhavesh Jayanti Lakhani v State of Maharashtra, (2009) 9 SCC 551 (‘India follows the doctrine of dualism and not monoism (sic). 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. …Whenever, it is well known, a conflict arises between a treaty and the domestic law or a municipal law, the latter shall prevail’); State of West Bengal v Kesoram Industries Ltd, (2004) 10 SCC 201 (‘…the doctrine of ‘Monism’ as prevailing in the European countries does not prevail in India. The doctrine of ‘Dualism’ is applicable’).

  42. Peoples’ Union for Civil Liberties v Union of India, AIR 1997 SC 568.

  43. Constituent Assembly Debates, 25 August 1947, vol. V (Lok Sabha Secretariat, Govt of India, New Delhi, 1948–49).

  44. Section 12 of the Extradition Act, 1962 permits the Central Government to modify the provisions of the Act in relation to a foreign state with which it has entered into an extradition treaty, for the purposes of giving effect to the treaty. Similarly, Section 90, Income Tax Act, 1961 allows the modified application of the Income Tax Act in relation to assessees covered by Double Taxation Avoidance Agreements between India and foreign countries.

  45. Section 2, United Nations (Security Council) Act, 1947.

  46. See The Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Order, 2007; The Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Amendment Order, 2009.

  47. See Kadi v Council and Commission, C-402/05 P and C-415/05 P, [2008] ECR I–6351; European Commission, Council of the European Union and United Kingdom of Great Britain and Northern Ireland v Yassin Abdullah Kadi, C-584/10 P, C-593/10 P and C-595/10 P, EU:C:2013:518.

  48. Section 3, Environment (Protection) Act, 1986.

  49. Section 6, Environment (Protection) Act, 1986.

  50. See eg, Hazardous Waste (Management, Handling and Transboundary Movement) Rules, as amended upto 2009 (incorporating obligations under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Basel, 1989.

  51. Section 35, Extradition Act, 1962.

  52. 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. Shashi Tharoor, India’s Crisis of Representation, OPEN, 18 August 2017 <>.

  53. See V. R. Krishna Iyer, Accord Sans Accountability, Frontline, 30 March 2002, <>.

  54. At the least, the ratification of an international legal instrument imposes international obligations on the country. Article 27 of the Vienna Convention on the Law of Treaties provides that ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’

  55. See eg, PIL filed before the Delhi High Court in Shiva Kant Jha v Union of India, CWP (PIL) No. 1357 of 2007, making this claim.

  56. 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 Joanna Harrington, Scrutiny and Approval: The Role for Westminster Style Parliaments in Treaty-Making, 55 Intl & Comparative L Quarterly 121 (2006).

  57. Commission to Review the Working of the Constitution, supra note 38.

  58. Ibid.

  59. Bhairav Acharya & Rajeev Dhavan, The Nuclear Cooperation Agreement Between India and the United States of America, PILSARC (2007), <>.

  60. Ibid.; R. Sachar, Treaty Making Power of a Government, PUCL Bulletin, November 2006, <>.

  61. See Rajeev Dhavan, Treaties and People: Reflections, 39 J Indian L Inst (1997) 1–46.

  62. Commission to Review the Working of the Constitution, supra note 38

  63. P.B. Samant v Union of India, AIR 1994 Bom 323 (arguing for an injunction against the federal government from ‘entering into final treaty relating to Dunkel Proposals without obtaining sanction of the Parliament and State Legislatures’); Shiva Kant Jha v Union of India, CWP (PIL) NO. 1357 of 2007 (Delhi High Court) (arguing inter alia for a declaration that the Executive cannot bypass Parliament in ratifying treaties, especially those that have a deep impact on the division of centre-state powers). According to media reports, this case has been dismissed both by the Delhi High Court and the Supreme Court of India. See Centre's treaty-making power must conform to Constitution: SC, Times of India, 17 August 2010, <>.

  64. See F. L. Hartman, Federalism as a Limitation on the Treaty Power of the United States, West Germany, and India, 18 Case Western Reserve L Rev (1967) 134 (discussing the wide-ranging impact of broad wording of Article 253 on the federal structure in India).

  65. Michael Anderson, International Environmental Laws in Indian Courts, 7(1) Rev European Community & Intl Environmental L (1998) 21.

  66. See, eg, Ravi Shankar Prasad, Present Lokpal an Assault on Federalism, Times of India, 27 December 2011 <> (newspaper article by the main opposition’s spokesperson, calling the lokpal bill an ‘assault on federalism’).

  67. In particular, it was argued that the legislation ought to have been brought under Article 252, after consultation with the states.

  68. See In Re: The Berubari Union and Exchange of Enclaves, AIR 1960 SC 845 (stating that treaty making power has to be exercised subject to limitations imposed by the Constitution).

  69. See, eg, State of Gujarat v Vora Fiddali Badruddin Mithibarwala, AIR 1964 SC 1043; Maganbhai Ishwarbhai Patel v Union of India, (1970) 3 SCC 400; P. B. Samant v Union of India, AIR 1994 Bom 323; Union of India v Azadi Bachao Andolan, (2004) 10 SCC 1.

  70. See, eg, Maganbhai Ishwarbhai Patel v Union of India, (1970) 3 SCC 400.

  71. (1984) 2 SCC 534.

  72. Ibid (emphasis supplied).

  73. Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647.

  74. Ibid. See also, People's Union for Civil Liberties v Union of India, (1997) 1 SCC 301.

  75. 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 65.

  76. M.V. Elisabeth v Harwan Investment and Trading Pvt. Ltd, AIR 1993 SC 1014.

  77. Since then this decision has been cited with approval in MV Al Quamar v Tsavliris Salvage (International) Ltd, (2000) 8 SCC 278; Liverpool and London S.P. and I Association v M.V. Sea Success, (2004) 9 SCC 512.

  78. See eg, Nilabati Behera v State of Orissa, (1993) 2 SCC 746; C. Masilamani Mudaliar v The Idol of Sri Swaminathaswami Swaminathaswami Thirukoli, (1996) 8 SCC 525; Sarbananda Sonowal v Union of India, (2005) 5 SCC 665.

  79. State of West Bengal v Kesoram Industries Ltd, (2004) 10 SCC 201.

  80. See People's Union for Civil Liberties v Union of India, (1997) 3 SCC 433.

  81. Ibid (emphasis supplied).

  82. (1997) 6 SCC 241.

  83. Ibid.

  84. A similar point is made in Michael Anderson, surpa note 64.

  85. See, eg, Apparel Export Promotion Council v A.K. Chopra, (1999) 1 SCC 759; The Chairman, Railway Board v Chandrima Das, (2000) 2 SCC 465; Kuldip Nayar v Union of India, (2006) 7 SCC 1.

  86. P.N. Krishna Lal v Govt of Kerala, 1995 Supp (2) SCC 187. See also John Vallamattom v Union of India, (2003) 6 SCC 611.

  87. Ashoka Kumar Thakur v Union of India, (2007) 4 SCC 397. This case was referred to a larger bench which handed down its decision in 2008, but did not address the issue framed. Ashoka Kumar Thakur v Union of India, (2008) 6 SCC 1.

  88. Bhavesh Jayanti Lakhani v State of Maharashtra, (2009)9SCC551 (‘India follows the doctrine of dualism and not monoism (sic)’).

  89. Aparna Chandra, Fostering Respect? India’s Engagement with International Law: A Call for Caution (unpublished JSD Dissertation submitted to the Yale Law School, 2013).

  90. 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. S. Chimni, Third World Approaches to International Law: A Manifesto, 8 Intl Community L Rev (2006) 3.

  91. See Joanna Harrington, Scrutiny and Approval: The Role for Westminster Style Parliaments in Treaty-Making, 55 Intl & Comparative L Quarterly (2006) 121.

  92. Ibid.

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Chandra, A. India and international law: formal dualism, functional monism. Indian Journal of International Law 57, 25–45 (2017).

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