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India and International Law: Formal Dualism, Functional Monism

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India and International Law: Formal Dualism, Functional Monism Indian Journal of International Law https://doi.org/10.1007/s40901-017-0069-0 ARTICLE India and international law: formal dualism, functional monism Aparna Chandra Ó The Indian Society of International Law 2017 Abstract 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 tenden- cies. 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. Keywords Monism Á Dualism Á Domestic implementation of international law Á Treaty making power Á Judicial incorporation of international law 1 Introduction How does, and how should, India engage with international law? Specifically, which organ(s) of government should be empowered, and how, to direct this engagement? Answers to these questions lie at the core of the present article. I argue that while the traditional doctrines of monism and dualism have limited explanatory power in describing Aparna Chandra (&) Centre for Constitutional Law, Policy and Governance, National Law University, Delhi, New Delhi, India e-mail: [email protected] 123 Aparna Chandra transnational legal interactions in today’s interconnected world, they continue to shape the domestic allocation of power with respect to the assumption and domestication of international law obligations. In the context of India, which describes itself as dualist, 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, since 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 on various counts. In Part 2 of this paper I briefly describe the doctrines of monism and dualism, before shifting lens to the Indian doctrine and practice of engaging with international law. In Part 3, I describe the Constitu- tional allocation of powers in relation to engagement with interna- tional law. Part 4 focuses on the practice of the Executive in internalizing international law. Part 5 relates to judicial approaches to engaging with international law. Part 6 concludes with observations and concerns regarding the Indian practice of engagement with international law. 2 Monism and dualism The notion that international and domestic laws operate in distinct spheres separated from each other through clear normative and physical borders, is no longer the prevailing paradigm for either describing or theorizing the relationship between the two bodies of law. No longer is international law thought of as a set of rules governing the relations among states. Rather, international law increasingly denotes a norma- tive framework that is both constitutive and reflective of the relationship not only between states inter se, but also between states, their citizens, other individuals, and non-state entities—matters once thought to be purely within the domestic/municipal sphere.1 The roots of these changes in the forms, function, institutions and content of 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. 123 India and international law: formal dualism, functional monism international law lie in the recognition that many concerns facing the entire world, from environmental law, to criminal enterprise, to peace and security, have their basis in discrete domestic policies. The earlier conception of international law, limited to the regulation of inter-state relationships, was not adequate to cope with these concerns.2 Norm-setting at the international level has resulted in the increasing transfer of decision-making authority to transnational fora and processes.3 The substantive rules of international law are so wide- reaching and pervasive that it is no longer possible to say that there are ‘matters which are essentially within the domestic jurisdiction of any state.’4 International law norms are increasingly designed to be applied within national orders, giving rise to the need for national enforcement.5 The changing scope of international law has fuelled the need for moving beyond the doctrinal devices of monism and dualism in delineating the interaction between, and relative authority of interna- tional and domestic laws. Historically, the doctrines of monism and dualism conceptualized two distinct modes of interaction between international and domestic law in domestic courts.6 Monism conceives of the international and domestic legal orders as normatively intercon- nected, and views international and domestic law as part of the same legal order. According to monist approaches, international law ought to be automatically incorporated into the domestic legal order, without the requirement of any additional act of adoption or transformation by the state. On incorporation, international law is slotted into the hierarchy of legal sources applicable within the domestic legal order and is applied as part of the governing normative framework within that jurisdiction, including by the judiciary. Monism rationalizes the interconnectedness of the international and domestic legal spheres on the understanding that it is international law that provides the 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,86American J Intl L (1992) 310, 311. 123 Aparna Chandra recognition necessary for the authority of municipal law to operate over a given subject or territory.7 Dualism, on the other hand, is based on the understanding that international and domestic laws operate in distinct and compartmen- talized spheres and that international law is not automatically incorporated into the domestic legal order.8 Since international and domestic laws operate in distinct spheres, the only mechanism for the transformation of international law into domestic law is through the medium of regular domestic law-making processes. Dualism therefore does not hold that international law does not have any role to play in the domestic order, but that whatever this role might be, it has to be directly sanctioned by domestic legal processes.9 Monism and dualism are artifacts of specific political debates that took place in the Europe in the late nineteenth- early twentieth century regarding the nature and function of law and the limits, if any, on state power.10 In recent literature, attempts have been made to re-purpose these doctrines to address contemporary concerns.11 Monist values are rationalized within contemporary discourses as promoting/reflecting a cosmopolitan culture and the universalization of value,12 as well as serving the imperatives of global governance.13 Dualism on the other hand has been reinforced in recent writings as a valuable device for preserving/promoting international legal plural- ism;14 as protecting the distinct and self-expressive nature of domestic 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,
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