Abstract

The monist versus dualist theory of international law has long been debated as two contrasting approaches to the relationship between international and domestic law. While these theories may have limited explanatory value in practice, they serve as valuable analytical tools for understanding the interplay between the two legal spheres. Monism posits that international law is incorporated into and superior to domestic law, creating a unified legal system where international law governs over domestic laws. On the other hand, dualism argues for a clear separation between international and domestic law, with international law requiring domestic implementation to be binding at the national level. This paper examines the monist and dualist theories of international law and their implications in India's legal framework. India follows a dualist approach, requiring enabling legislation by Parliament to give effect to international treaties. However, recent judicial decisions have deviated from this approach, allowing for the direct integration of treaties into domestic law in certain cases. This raises concerns about the separation of powers and the infringement on Parliament's law-making authority. The paper also highlights the mixed approaches to international law adopted by many countries, including the United States, which combines elements of both monism and dualism. It discusses the challenges posed by the democratic legitimacy of international law and the translation of treaty commitments into enforceable norms. In conclusion, the paper argues that India's international legal standing is inconsistent with its constitutional policy, as the courts have been incorporating international treaties without enabling legislation. It emphasizes the need to strike a balance between monist and dualist perspectives to promote the rule of law in the international sphere while respecting constitutional safeguards. The ongoing scholarly and legal interest in this topic demonstrates the quest for understanding how international legal norms can be enforced in a democratic and politically legitimate manner to advance human rights, economic growth, and world peace.

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