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 Indian Journal of International Law https://doi.org/10.1007/s40901-017-0069-0
India and international law: formal dualism, functional monism
Jul 05, 2023
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