DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

PUBLIC INTERNATIONAL LAW PROJECT

“THE RELATION BETWEEN DOMESTIC LAW AND INTERNATIONAL LAW

Submitted To- Submitted By-

Dr. Abdullah Nasir Saniya Singh

Assistant Professor (Law) Enrol No.-220101087

2 nd Year (IVth Semester)

I take this opportunity to thank profusely my lecturer Assistant Professor Dr. Abdullah Nasir Sir
for providing me with a platform to explore the unexplored depths of the topic ‘THE
RELATION BETWEEN DOMESTIC LAW AND INTERNATIONAL LAW
Indeed, the experience has been insightful and most often, thought provoking. A deeper
understanding of such an important topic has enriched my knowledge.

I also wish to express my gratitude to all the library staff for their patience and cooperation in
helping me find the apt research material. My thanks further extend to all the other sources of
information and of course, to my friends and seniors, without whose insightful thoughts and
relevant criticisms, the project would not have been completed.

Last but not the least, I wish to thank my parents and the God Almighty for their help and
constant support through various means. I also hope that I will be provided with similar
opportunities to work on such other interesting topics in the future.

Thanking You,

Saniya Singh
 TABLE OF CONTENTS

1. Introduction
2. The monist and dualist theories
3. Does International Law have a place in the domestic legal system
4. The Indian Judicial perspective
5. Conclusion
6. References
 INTRODUCTION
The conflict between domestic law and international law is a centuries old debate. At the very
outset, the question that leads the conflict is whether international law is actually “law". This has
been a question of jurisprudence that has baffled jurists and legal scholars. It is in the treatment
of international law by domestic courts - a concrete practical setting - and the question is
contextual in form: is a particular type of international law, law for a particular purpose in a
particular domestic legal system? Accounts of how domestic courts do, or should, treat
international law are not presented as answers to this question, but of course they are
propositions about whether it counts as law and if not, then what exactly its nature is.' 1

The issue of the relation between domestic law and international law has been looked at from
various perspectives. However, one area where the debate is relatively fresher is the conflict of
laws. Therefore, domestic law and international law are seen from the perspective of a conflict
of laws. In a nutshell, international law is the law which usually applies to the conflict between
nations or even a simple matter concerning the relations between nations (whether or not it is a
dispute). Municipal or domestic law is the law which applies within the territory of states,
pertaining to different spheres of the law like civil law, criminal law, corporate laws etc.

Earlier, the debate regarding the relationship between the two was more of a theoretical debate.
However, over the years the problem has assumed practical significance as well. This is because
courts face difficulty arriving at decisions where there is a conflict between domestic and
international law. Sometimes the courts are at a dead end or stalemate because they do not know
whether to apply international law or domestic law.

A famous scholar, Anzilotti, also talks about the relation between international law and municipal
law. In his various works, he has talked about the dichotomy between positive law and natural
law. According to him, the relation between municipal law and International Law can be explained
along the same lines.

1
Knop Karen, Michaels Ralf & Riles Annelise, ‘International Law in Domestic Courts: A Conflict of Laws
Approach’ (2009) Cornell Law Faculty Publications
<[Link] > assessed on 10 March 2023
His main concern appears to be that of clearing international law from the undue influence of
concepts prevailing in municipal law. In his major study on the subject (Diritto internazionale
nei giudizi intemi), which was published in 1905, he traced a distinction between international
law and municipal law on the following lines: First of all, they are enacted by different wills:
international law stems from the collective will of several States, while rules of municipal law
are always the expression of the will of a State, or better of the will belonging to a State, if one
does not wish to prejudge the well known controversy on the binding nature of custom, which
many jurists consider as law which is not State law, while nobody doubts that it belongs to
municipal law. Secondly, the relations which are respectively governed are different: norms of
international law govern relations between coordinated and autonomous entities, which are
linked within a community lacking a legal organization, and thus these norms are completely
independent from the existence of any power over these entities, while norms of municipal law
govern relations within a society which is legally organized and therefore they implicitly contain
an idea of supremacy and subordination - an imperium of the collective entity over the members
of society2. He was thus of the clear view that the two function within their independent sphere,
which is the belief of the propounders of the dualist theory.

THE DUALIST AND MONIST THEORIES

There are two mains theories in this regard. There is the dualist theory and the monist theory. We
will discuss these individually and then understand what system India is following.

Dualist theory: The theory was propounded by a prominent German scholar Triepel in 1899.
According to this theory, the International Law and Municipal Law of a state aretwo distinct
things. These two laws are independent and function in two completely different spheres, being
separate systems, International Law would not as such form part of the internal law of a State to
the extent that in particular instance rules of International Law may apply within a State they do
so by -virtue of their adoption by the internal law of the State, and apply as part of that internal
law and not as International Law. In such a case, the question of supremacy of one over the other
does not really arise.

2
Anzilotti Dionisio, ‘Scritti di Diritto Internazionale Pubblico’ (2017) Cambridge University Press
In simple words, this means that if the domestic laws of a state are framed in order to ensure that
the domestic law complies with a certain international law; or if the state adopts a treaty or signs
a convention which requires it to enact or amend a certain legislation, only then can international
law apply within the territory of the state. And again, it applies by virtue of the domestic
legislation.

In other words, though both the systems are distinct, the application of international law by way
of transformation or incorporation in the municipal law is only possible because the municipal
law conditions its validity and operation within the municipal sphere and thus the municipal law
gains supremacy over the international law. Therefore, in case there is an inconsistency between
the two, municipal law will prevail. In courts and tribunals, even when the parties have a choice
of law, the municipal law will prevail.

Therefore, to conclude, this theory states that municipal law is applied to the dispute within a
state pertaining to municipal or domestic matters and functions separately from the international
law.

Monist Theory: This theory gained importance in the eighteenth century. It was propounded by
two German scholars Moser (1701-85) and Martens (1756-1821). According to this doctrine
there exists only one set of legal system, i.e., the domestic legal order. According to this
particular view, International law is not a distinct body of law. There is no need to distinguish it
from the municipal laws of the states since the states themselves have made the rules of
international law. Essentially, this view seems to do away with the incorporation of international
law in the municipal or domestic laws of a country. In the opinion of its theorists, the two
together form a single legal order. International Law is therefore indistinguishable from the
internal law of States and is of significance only as part of the universal legal order. Various
writers interpret the universal order different ways. These differences stem from the general
theoretical concept of International Law as a universal legal system.
 DOES INTERNATIONAL LAW HAVE A PLACE IN THE DOMESTIC
LEGAL SYSTEMS?
Before we go any further, it is important to understand that the effectiveness of international law
also depends on the will of the states. It is evident that unless the states explicitly understand that
they are under an obligation to adhere to certain international norms, they will not feel it is their
duty to do so. The modern day principles of international law have transgressed boundaries and
moved against the stonewall of sovereignty. The traditional notions of the relationship between
International law and Municipal law have undergone many changes. One of the most important
ways that this has been done is that the Indian Constitution also has an article relating to
international law and puts an obligation on the state to adhere to the same through changes in the
domestic legislation. A more implicit way is the judicial interpretation of international treaties
and statutes, and the often quoted principles of International law (conventions, treaties etc.) in
the judgments.

There are two major principles in this regard, the doctrine of incorporation and the doctrine of
transformation. In the former, it is said that international law rules can be automatically
integrated into the rules of domestic law so far as they are not in conflict with the rules of
domestic (municipal) law. The latter propagates that the rules of international law are not
considered a part of the rules of domestic law until they are specifically and explicitly
incorporated in the same.

In the English courts, many judgments given by Lord Denning talk about the origin and history
of the aforementioned views on the relation between international and municipal law. He
observed, in the case of Buvot v. Barbuit3, that Lord Talbot had pointed out that "the law of
nations in its full extent was a part of the law of England". This view was also followed by
jurists like Lord Mansfield and William Blackstone. The theory of transformation was discussed
by Lord Atkins in Chung Chi Cheung v. R4 where he said that "so far at any rate as the courts of
this country are concerned, international law has no validity save in so far as its principles are
accepted and adopted by our own domestic law". In the case of R v. Secretary for the Home
Department, Ex parte Thakrar5, Lord Denning subscribed to the doctrine of transformation.

3
Buvot v Barbuit (1737) Cas Temp Talbot 281.
4
Chung Chi Cheung v R [1939] AC 167.
5
R v Secretary for the Home Department, Ex parte Thakrar [1974] QB 684.
However, in a later case he changed his stand and said that he was of the view that the doctrine
of incorporation was indeed correct.6

THE INDIAN JUDICIAL PERSPECTIVE

(a) to promote international peace and security

(b) maintain just and honorable relations between nations

(c) foster respect for International Law and treaty obligations in the dealings of organized

peoples with one another

(d) encourage settlement of international disputes by arbitration.

A criticism of the studies in International Law in India is that there is insufficient research done
on the relations between the various kingdoms within India. Scholars are of the belief that there
is unsatisfactory work done as regards the aforementioned. The only concrete research is on the
relation between British India and the rest of the world, as well as the influences of external
relations between nations on British India.

In Shri Krishna Sharma v. The State of West Bengal7, the Calcutta High Court stated that the
Indian Courts would apply rules of internal law which includes (a) the Constitution of India, (b)
the Statute enacted by the Parliament of India, and (c) the Statutes enacted by the Legislatures.
The Court held:

"If the Indian Statutes are in conflict with any principle of International Law, the Indian Courts
will have to obey the laws enacted by the legislature of the country to which they owe their
allegiance. In interpreting and applying municipal law, the Courts will try to adopt such a
construction as will not bring it into conflict with the rights and obligations deductible from rules
of internal law. If such rules or rights and obligations are inconsistent with the positive regulation

6
Trendtex Trading Corporation Ltd v Central Bank of Nigeria (1977) 1 All ER 881.
7
Shri Krishna Sharma v The State of West Bengal
of municipal law, the courts override the latter. It is futile in such circumstances to seek to
reconcile, by strained construction which really irreconcilable.”

Another interesting case is the case of Gramophone Recording Company v. Birendra Bahadur
Pandey8 where Justice Chinappa Reddy said that the nations must match with the international
community and municipal law must respect the rules of international law even as nations respect
the international opinion. He also quoted the doctrine of incorporation of substantiate his
opinion. He also said that in case the two areas of law are in conflict, international law must
prevail.

The Indian courts are also of the view that the Parliament does not lay down a law which may
potentially conflict with the rules of international law. However, in case there is a conflict
between international law and municipal law, the main thing to be kept in mind is that both
statutes (domestic and international) must be clear in their meaning. Only then can we decide
which one is to prevail.9

The Gramophone case was important because one of the principles that it laid down clearly was
that domestic courts could not adjudicate on subjects of international law. So far as the issue of
treaty interpretation goes, the Supreme Court had said that a treaty would not bind the state
unless the same has been ratified by the state. However, despite this there could in implicit
ratification as well because of certain actions performed by the state parties. 10 As to treaties, it is
submitted that they shall not be binding upon Indian Courts unless they have been implemented
by legislation. The above view is based on Article 253 11 of the Constitution which says that
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 country or countries or any decision
made at any international conference, association or other body.

8
Gramophone Recording Company v Birendra Bahadur Pandey (1984) 2 SCC 545.
9
V/o Tractorexport Moscow v M/s Tarapore & Co & Another (1970) 3 SCR 53. In this case, Article 253 of the
Indian Constitution which gives the Parliament the Supreme Power to pass legislation with the country. It is
however, silent on the treaty making power of the Parliament.
10
UOI v Sukumar Sengupta (1990) Supp SCC 545.
11
The Constitution of India, Article 253.
In Vishakha v. State of Rajasthan12, the Supreme Court held that the international conventions
and norms are to be read into them in the absence of enacted domestic law occupying the field
when there is no inconsistency between them. In the above case, a writ petition was filed by
certain social activists and NGOs for the realization of the true concept of gender equality and to
prevent sexual harassment of working women in all work places, through judicial process to fill
the vacuum in existing legislation. Reference was given to Article 11 13 of the Convention on the
Elimination of All Forms of Discrimination against Women, which prohibits discrimination
against women in the field of employment i.e., equality in employment.

It was observed by the Court that equality in employment can be seriously impaired when
women are subjected to gender specific violence, such as sexual harassment in the work place.
Since in India there is no law to formulate effective measures to check the evil of sexual
harassment of working women at all work places, the Court held that the contents of
international conventions and norms are significant for the purpose of interpretation of the
guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and
21 of the Constitution and the safeguards against sexual harassment implicit therein.

12
Vishakha v State of Rajasthan AIR 1997 SC 3011.
13
Convention on the Elimination of All Forms of Discrimination against Women, Article 11.
 CONCLUSION
We can see that the Indian view on the relationship between Domestic Law and International
Law has been very flexible and has evolved through the course of various judicial
pronouncements. Judges who have adjudicated these cases are also of different views, some
subscribing to the transformation theory and some subscribing to the incorporation theory.
However, something which has been consistent is that there has been constant emphasis on the
need to adhere to the international norms and also conventions and treaties.

This perhaps arises from the concept of state responsibility. This is because India has been under
British rules for centuries, and of the aims was to integrate itself as a nation state in the
international community once it was independent. For this, it was important to follows the rules
of international law and show cooperation amongst the other nation states. This is why India has
been such an active member of the United Nations and the agencies of the UN in India are
constantly working to ensure the betterment of South-East Asian countries in terms of society
and culture.

However, one cannot say very clearly whether India follows the monist or dualist view. I am of
the opinion that there is a mixed stand. Even when the concept of International Law and
evolving and was in its nascent stage in the Indian Courts, judges were of differing opinions on
the same. To a large extent our country has been influenced by the law in England and the
United States, which is also a common law country.

The main aim behind the incorporation of the international law has been to ensure that India is a
part of the international community. India has constantly tried to incorporate the international
law in its domestic legal system. Once again, this does not very clearly show whether India is of
the monist or dualist view. For instance, one surprising fact is that India has not ratified the
convention against child labour. However, it has incorporated in the Constitution articles which
prohibit the same. This goes to show that India considers that the international law and the
domestic law are two distinct legal systems and function in independent sphere. However, an
analysis of cases in the course of my research shows that India has also ensured the conformity
of its domestic law with the international law, whether by incorporation or by transformation.
This shows the affinity towards a view which leans towards the monist theory.
 REFERENCES

Shilpa J, Introduction to Public International Law (1st ed, Abhinandan malik, Eastern Book
Company 2016)

Brownlie I, Basic Documents in International Law (4th ed, Oxford University Press 1995)

Shaw M N, International Law (6th ed, Cambridge University Press 2008)

Gray C, International Law and the Use of Force (3rd ed, Oxford University Press 2008)

Knop K, Michaels R & Riles A, ‘International Law in Domestic Courts: A Conflict of Laws
Approach’ (2009) Cornell Law Faculty Publications
<[Link]
>assessed on 10 March 2023

Anzilotti D, ‘Scritti di Diritto Internazionale Pubblico’ (2017) Cambridge University Press

Kurlekar A and Pai M, ‘The Divergence Between International Law and Indian Law Applicable
in Counter Piracy Measures: Analysed Through the Decision of The Republic of Italy v. Union
of India’ (2013) 6 NUJS L Rev 527

Ferreira G and Ferreira-Snyman MP, ‘The Incorporation of Public International Law into
Municipal Law and Regional Law Against the Background of the Dichotomy between Monism
and Dualism’ (14 November 2014) 17(4) Potchefstroom Electronic Law Journal