Relationship between International Law and State Law notes — Unit 2

When a state signs an international treaty, does it automatically become the law of that country? If a domestic law clashes with an international treaty, which one wins in a local court? Jurists developed two opposing theories to answer this.

⇒1. The Monistic Theory

Chief Exponent: Hans Kelsen.

• Core Idea: International Law and Municipal (State) Law are NOT two separate systems. They are both parts of a single, unified legal system.
• The Hierarchy: Kelsen argued that International Law is at the top of the pyramid. Municipal law derives its validity from International Law.
• Consequence: A treaty signed by a state automatically becomes domestic law. No separate parliament act is needed. If domestic law contradicts international law, the domestic law is invalid.

⇒2. The Dualistic Theory

Chief Exponents: Triepel and Anzilotti.

• Core Idea: International Law and Municipal Law are two entirely distinct, separate, and independent legal systems.
• Different Subjects: Municipal law regulates individuals; International law regulates sovereign states.
• Consequence: International law CANNOT automatically operate inside a state. It must be expressly transformed or adopted by the domestic parliament. If domestic law contradicts a treaty, local courts MUST apply the domestic law.

Because most states follow Dualism in practice, how exactly does an international treaty get into the domestic system?

⇒Specific Adoption / Transformation Theory

This theory states that international law is 'transformed' into municipal law through a specific act of the legislature.

• Example: India signs the WTO Agreement. It does not automatically apply in Indian courts. The Indian Parliament must pass a specific act (like amending the Patents Act) to transform the treaty obligations into domestic law.

⇒Delegation Theory

Critics of the transformation theory argue that a treaty isn't transformed; rather, International Law 'delegates' the power to each State Constitution to determine how to implement the treaty locally.

How do the oldest democracies handle this clash?

⇒British Practice (Strict Dualism for Treaties)

• Customary Law: British courts apply the Blackstonian Doctrine—International Custom is considered part of the common law of the land automatically, provided it doesn't conflict with a British statute.
• Treaties: Britain is strictly Dualist. The Executive (Crown) has the power to sign treaties, but those treaties have NO effect on the rights of British citizens unless Parliament passes an Act to incorporate the treaty into domestic law.

⇒American Practice (Modified Monism)

• The Supremacy Clause: Article VI of the US Constitution declares that 'all Treaties made... shall be the supreme Law of the Land'.
• Self-Executing Treaties: If a treaty is drafted clearly enough that it doesn't require further legislation, it automatically becomes domestic law the moment it is ratified by the Senate (Monist approach).
• Conflict: If an Act of Congress clashes with a Treaty, the US Supreme Court applies the rule of 'Last in Time' (whichever is newer prevails).

India generally follows the British Dualist model, but with specific constitutional mandates to respect international law.

⇒Article 51(c) of the Constitution

Found in the Directive Principles of State Policy, Article 51(c) states: 'The State shall endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with one another.'

• This is a directive, not a legally enforceable right. It shows the intent of the framers to respect international law, but it doesn't automatically make treaties part of Indian law.

⇒Article 253: The Power to Implement

Article 253 gives the Union Parliament the absolute power to make any law for the whole or any part of India for implementing any treaty, agreement or convention with any other country.

While India is technically Dualist (treaties need an Act of Parliament), the Supreme Court has creatively bypassed this requirement when dealing with Human Rights.

⇒Vishaka v. State of Rajasthan (1997)

• The Problem: There was no domestic law in India protecting women from sexual harassment at the workplace.
• The Innovation: The Supreme Court noted that India had ratified the CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women).
• The Ruling: Chief Justice J.S. Verma held that when there is a 'void' in domestic law, international conventions that are consistent with fundamental rights can be read into those rights to enlarge their meaning. The Court directly applied the CEDAW treaty to create the binding 'Vishaka Guidelines'.
• The Impact: This was a massive shift towards Monism. The Court proved that international treaties can directly create rights in domestic courts if Parliament is silent.

⇒Summary of Master Concepts

• Monism: One legal system. Treaties apply automatically (Kelsen).
• Dualism: Two separate systems. Treaties need a Parliament Act to transform them into domestic law (Triepel).
• Britain: Strict dualism for treaties.
• USA: Treaties are the Supreme Law of the land (if self-executing).
• India: Dualist in theory (Art 253 requires Parliament to act), but increasingly Monist in practice regarding human rights (Art 51(c) + Vishaka).

⇒University Exam Tips for this Unit (Premium Advice)

• The Article 253 Trick: If a question asks 'Can the Centre make laws on the State List?', always include Article 253 (Treaty implementation) as a major exception to federalism.
• Vishaka is Mandatory: Whenever asked about the relationship between International Law and Indian Law, you MUST write a detailed paragraph on Vishaka v. State of Rajasthan. It is the ultimate proof that Indian courts will import international law directly when domestic law is silent.
• Dualism vs Transformation: Understand that 'Transformation Theory' is just the practical mechanism of how Dualism works. State them together.