By Pawan Kumar
The post-World War era saw a proliferation of nation-states, dramatically altering the landscape of international law. Globalisation, the defining phenomenon of the 20th century, catalysed the infusion of international legal norms into domestic systems. This dynamic has sparked growing interest in the process of constitutionalising international law—embedding global norms into national legal frameworks.
At the heart of this integration lie two principal legal theories: monism and dualism. Monist systems—followed by countries like the USA and UK—treat international law as part of domestic law without further legislative action. In contrast, dualist systems, including India’s, regard international and domestic law as distinct, requiring parliamentary ratification for international treaties to have local force. India’s Article 253 constitutionally codifies this principle.
INDIA’S DUALIST MODEL AND GLOBAL INTEGRATION
India’s constitutional framework exemplifies a measured embrace of international law. The integration process, while rooted in dualism, mirrors a global trend towards legal convergence. By allowing international legal principles to inform judicial reasoning and legislation, India contributes to the evolving global legal order.
This phenomenon—constitutionalising international law—entails not just transposing treaties into domestic law, but shaping national jurisprudence through global norms. As the world’s largest democracy, India offers a compelling case study in how domestic constitutional mechanisms engage with international legal standards.
HISTORICAL AND LEGAL FOUNDATIONS
India’s relationship with international law has evolved through its colonial legacy, independence movement, and membership in global institutions like the UN. The framers of the Constitution anticipated this interaction, embedding it in key provisions:
Article 51 directs the State to promote international peace and respect for international law.
Article 253 empowers parliament to implement international treaties through legislation.
Indian courts do not automatically apply international law, but they interpret existing statutes in line with the country’s treaty obligations—a principle rooted in good faith compliance.
JUDICIAL INTERPRETATION: A QUIET REVOLUTION
The judiciary has been instrumental in bringing international norms into the Indian legal mainstream. In the Vishaka vs State of Rajasthan case (1997), the Supreme Court filled a legislative vacuum on workplace sexual harassment by invoking CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), a treaty ratified by India.
Such cases illustrate how international human rights norms can expand domestic fundamental rights, demonstrating the courts’ proactive role in constitutionalising global standards.
THE ENFORCEMENT DILEMMA
One of the most persistent criticisms of international law is its lack of enforceability. Without a central global authority, enforcement relies on voluntary state compliance. This becomes problematic when powerful nations, capable of resisting accountability, withdraw or threaten to withdraw from global institutions.
Examples abound:
The USA under Trump exited the World Health Organisation.
Burundi and the Philippines sought to leave the International Criminal Court.
Nonetheless, treaty frameworks do contain enforcement provisions, and signing a treaty entails an obligation to abide by its spirit and letter.
TOWARDS A REIMAGINED GLOBAL LEGAL ORDER
Legal scholars, notably Professor Upendra Baxi, have proposed bold institutional innovations to close enforcement gaps:
A World Parliament to legislate on transnational issues like climate change, cybercrime, and pandemics.
A Universal Bill of Rights to ensure baseline protections across all jurisdictions.
A stronger international judiciary to enforce global norms uniformly.
While these proposals may seem utopian, they reflect a growing consensus on the need for global legal integration rooted in equity and consistency.
CONCLUSION
India’s evolving stance towards international law reflects a delicate balance between sovereignty and global responsibility. While firmly grounded in a dualist tradition, Indian constitutional mechanisms—particularly Article 253 and judicial interpretation—have facilitated a measured and meaningful integration of global legal norms.
As India marks the 75th anniversary of its Constitution, this milestone presents an opportunity to assess its position in the global legal order. Embracing international law more assertively could not only enhance India’s moral leadership, but also help shape a more stable, just, and cooperative world.
Yet, the journey ahead is fraught with legal, political, and diplomatic challenges. Navigating this path will require visionary thinking, sustained commitment, and a willingness to lead by example.
—The writer teaches at Amity Law School, Amity University, Noida
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