– Moksh Sharma

Secretary Incharge, Bar Council of India Trust


This article highlights the convergence of ever-expanding elements of borrowings/ migrations of international law to national constitutions especially of common law countries, and their trends and issues over the decades. The article also seeks to look into the convergence of international law in the various legal systems and appeals to all to connect with the global culture.


As Roscoe Pound1 said in “the Formative Era ofAmerican Law (1938), that “the history of a system of law is largely a history of borrowings of legal materials from other legal systems and of assimilation of materials from outside of the law”. The development of the English common law and the advent of constitutionalism in the second half of 20th century were phenomena where the circulation of norms and ideas have not only changed the legal systems but also the course of history. Faster means of communication, travel and globalization of legal education contributed to the intensification of constitutional borrowings and migrations of International law to national laws. As noted by Mr.Sujit Choudhury2 that “the migration of constitutional ideas across legal systems is rapidly emerging as one of the central features of contemporary constitutional practice”.

The accelerating forces in the current phenomena is mainly the expansion of a global market, the triumph of rights-based discourse,3 and most importantly the emergence of transnational networks by governments, non-governmental organizations (NGOs)4 and technocrats or professionals. The new democracies that emerged around the globe at the end of 20th Century has seen internationalization of constitutional law by having some provisions of international human rights laws added in their new Constitutions, for instance, the Constitution of Bosnia and Herzegovina 1995, the Constitution of South Africa (1996), the Constitution of South Korea (1987). However, the national courts of various countries, have by judicial incorporation considered not only International human rights law or documents but also cited and followed other International Courts decisions5, for instance, the decisions of the death penalty cases by the Canadian Supreme Court, the US Supreme Court and the South African Constitutional Court6. It has opened a new era of Judicial dialogue and engagement which was not there earlier and has brought International law and domestic Constitutions closer around the globe. Thus the process of migration become a self-reinforcing and ever-expanding force.

Treaties are like contracts between nations establishing obligations both at the national and international level. This article gives an overview of the doctrines/principles involved in cross fertilization of international law at the national level by tracing their origin, development and reception in the common law systems. The implementation of International law at national level varies in different countries and has produced two schools namely: “Monists” and “Dualists”. It is like those who warred in Gulliver’s Travels over the relative merits of cracking boiled eggs at the big end and the little end, their views sometimes seem mutually exclusive.

At the little end, is the Monist School (Monism) (for instance countries like Netherlands and Switzerland) according to which International law and domestic law are part of a single legal order and the International Law is regarded Supreme and can be invoked before domestic courts without prior incorporation through a statutory instrument.

At the big end, is the Dualist School (Dualism) which regards International law and national law into two separate and self-contained (autonomous) legal systems governing different subjects and legal relations. Mostly International law regulates the conduct of States and inter-State relations, and the national law regulates the relations between State organs and individuals, as well as, between individuals themselves. The International law ranks below the Constitution but is at par with the ordinary legislation. As per this school, the national law can apply international law only when it has been incorporated into it. This incorporation can be done by three ways, namely, by Parliament; or by Executive or by Court decisions. The dualist school originated in the 19th centurybut after World War-II there have been fundamental changes in the modern development of International law by creating new obligations amongst States, international protection of human rights, nationality and overlapping competence of private international law. Australia, Canada, India, U.K. and other Commonwealth countries are examples of dualist systems in which the International law operates outside the national legalsystem. Indian Judiciary though not empowered to make legislations, but through “judicial activism’ has played a proactive role in implementing its international obligations under international treaties especially in the field of human rights and environmental law. However the difference between the two schools has always been one of degrees. Some countries with a dualist tradition, for example, SouthAfrica and Germanyhave a monist approach to customary International law and has allowed the direct invocation of (so-called self-executing) treaties before the domestic courts. In practice, most of the domestic constitutions are functioning as hybrid – that is, incorporating both monist and dualist elements, which is due to the impact of the International judgments and close relationship between individuals and the States. An illuminating case ofYassinAbdullah Kadi7 is to the point. Mr. Kadi, who was a Saudi resident and Al Barakaat International Foundations was registered in Sweden. They both were designated by the sanctions of the UNSC Committee as being associated with Osama bin Laden (Al-Qaeda or the Taliban). Their financial assets and funds were then frozen. The Court of first Instance of European Communities (CFI) held that the UNSC obligations would prevail over all other conflicting obligations including human rights8. On appeal, the European Court of Justice reversed the decision of CFI and held that the protection of the right to fair trial as a fundamental right under EU law. The European Court based its decision exclusively on EU Law and did not address the norm conflict between Ell Law (domestic Constitutional Law) and UNSC resolutions. However England on the other side to overcome this problem they made a domestic legislation viz. the UK Terrorist Asset-Freezing (Temporary Provisions)Act 2010 (Chapter 2) which gives de facto preference to the UNSC resolutions.


Whatever jurists may say about the difference between ‘dualism’ and ‘monism’, there is a variations in the State practice at the level of implementation. Aparadigm shift has taken place by the national courts of many common law countries, for instance Australia, Canada, UK and India to look outside their own domestic legal traditions. The two main principles are applied which are at the opposite ends of the spectrum. They are namely doctrine of incorporation and doctrine of transformation9. Between these ends of the two basic principles are number of moderating principles/doctrines which have come into play and positioned the various legal systems along the broad spectrum. They are briefly under two heads as follows:

(i) Avoidance techniques (principles): It mainly moderates the impact of doctrine of incorporation and push towards the doctrine of transformation end of the spectrum. They are namely – doctrine of non-justiciability, politicalquestion doctrine, Act-of-state doctrine and doctrine of non-self-execution of treaties.

(ii) Harmonization techniques (principles): It moderates the impact of the doctrine of transformation and push towards the doctrine of incorporation end of the spectrum. They are for instance, principles of consistent interpretation (i.e. presumption of conformity principle), and other interpretative principles like doctrine of legitimate expectation, legality etc.


The following few nations will show how the doctrine of incorporation and transformation (conformity) have undergone revision in the last two centuries in the applicability of International law in national law.

(A) ENGLAND – The doctrine of incorporation mainly subsists in dualistic system like most common law countries where International law and national law are on separate spheres. They co-exist side by side, unlike the monistic system10. The origins of this doctrine of incorporation can be traced back to 18th Century in England. This was first affirmed by Sir William Blackstone (also known as the “Blackstonian doctrine”), and was much wider in its application than it is practiced today11. It is limited because of the rise of independent and sovereign nations, valuing national sovereignty over International law. The first instance of doctrine of incorporation was witnessed in the case of Viveash v Becker (1814),12 C.J.Ellenborough stated that the law of nations as to diplomatic immunity was applicable in English Courts without the need for parliamentary intervention. In 1823, in Novello vs Toogood13 , L.J. Abbot observed that the law of nations must be deemed a part of the common law. In 1824, in the case of De Witz vs Hendricks14, C.J. Best said the “law of nations (was) in all cases of International law …. adopted into municipal code of every civilized country”. In the year 1861, in the case of The Emperor of Austria v. Day and Kossuth15, Sir John Stuart V-C stated that “a public right recognized by the law of nations is a legal right, because the law of nations is a part of the common law of England”. Blackstone’s view was approved and he said that “it has so always been held in Courts and part of the law of the land”. In 1876, in the Queen vs Keyn16, Lord Cockburn, C.J. stated that “customary international law is not part of English law without statutory enactment”. In the 20th Century (1939), the landmark decision of the Privy Council in Chung Chi Chueng vs The King17 – Lord Atkin stated that customary International law is not part of the law of England until made so by statute.18 In 1997, Trendex Trading Corporation vs Central Bank of Nigeria19. Lord Denning stated that “a rule of International law is capable of being incorporated into English law if it is an established rule derived from one or more of the recognized sources of clear consensus.” Shaw LJ agreed declaring that “the law of nations…. is applied in the Courts of England20. In the 21st century (2000) in R v. Metropolitan Stipendiary Magistrate, separate Pinochet Ugarte21 (No.1), Lord Lloyd observed, “the requirements of customary International law, which are observed and enforced byour Courts as part of the common Law”, saying later that “the common law incorporates the rules of customary International Law”22. Similarly, in R v. Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No.3) Lord Millet stated that customary International law is part of the common law.

(B) Australia – The Australian Constitution is statutory in origin and is anAct of English Parliament. Sir Owen Dixon in 1935 observed “It is not a supreme law purporting to obtain its force from the direct expression of a people’s inherent authority to constitute a government. It is a statute of the British Parliament.23 The relationship between rules of International law and scope of the legislative powers of Parliament was considered in Polites v. The Commonwealth24. Acase of compulsory military service to foreigners present in Australia during World War II. Later in 1982, C.J. Mason in Australian Capital Television Vs. Commonwealth25 said that theAustralia Act, 1986 marked the end of the legal sovereignty of the Imperial Parliament and recognized that ultimate sovereignty resided in the Australian people.

Under the Australian Constitution a treaty only becomes a ‘direct source of individual rights and obligations’ when it is directly incorporated by legislation26. This is because the making and ratification of treaties is a function of the Commonwealth Executive, whereas the making and alteration of Commonwealth laws is a function of the Commonwealth Parliament. However even when treaties have not been directly incorporated by legislation, they are an indirect source of rights. The High Court of Australia’s decision in 1995, in Minister for Immigration and Ethnic Affairs v Ah HinTeoh, (known as Teoh’s case) stated that legal provisions should be interpreted by courts in such a manner, that they are consistent with the Australia’s international obligations.

The High Court further held that ratification of a treaty raised a legitimate expectation that an executive decision-maker will act consistently with its terms27. The comments by the High Court of Australia in Exparte Lam’s case (in 2003) has indicated that the ‘legitimate expectation’ principle outlined in Teoh’s case may be a subject for reconsideration by the High Court in the future28. However, Teoh’s case is still holds the field in the Australian Courts and has been followed in many cases29.

TheAustralianjudiciary has been hesitant towards treating internationallaw as a legitimate and useful source of legal ideas and principles. Justice Jan Callinan of High Court of Australia in WesternAustralia v. Ward30(2002) observed that, “there is no requirement for the common law to develop in accordance with Internationallaw. While International law may occasionally, perhaps very occasionally, assist in the content of the common law, ie. the limit of its use.”

(C) Canada- Canada is a federation of ten provinces under the Canadian ConstitutionAct of 1867, (as amended in 1982). The Constitution is silent on the treaty making power whether it is by Federal or Provincial executive. In practice, it is left to the Federal executive. The status of International treaties in Canadian law is complex because of Canada’s Constitution which is partially codified by series of laws enacted by British, especially the Canadian Constitution Acts 1867 and 1982. But they are not complete codify Canadian public law. It be noted that treaty making is an executive act like in Article 73 in the Constitution of India. Canadian Courts has declared that a treaty is not in itselfa source of law for litigants to rely. The famous statement of this principle is in the judgment of LordAtkin in what is known as the Labour Conventions case (1937).31

Canada is based on the so-called dualist approach to International law: for a treaty to take direct effect in domestic law without legislative action would violate the fundamental constitutional principle that laws are made by legislatures and not by Crown. Canadian dualism is qualified, however it does not extend to rules of customary International Law. In Canada, the move towards accepting and using International law came in 1980s. The turning point32 came in Baker Vs. Canada33 (1999) – when the majority of Supreme Court of Canada rejected the Australian High Court’s approach in Minister for Immigration and EthnicAffairs Vs. Teoh34 finding on the facts that the treaty at issue (the Convention on Rights of Child 1989) did not give rise to legitimate expectation of specific procedural rights. The decision purported to leave open the question whether an international instrument ratified by Canada could give rise to legitimate expectation. Even ifa Canadian court was to recognize a treatyas the basis ofa legitimate expectation to certain rights, those rights would likely be procedural only, not substantive35. Regardless, the legitimate expectations doctrine differs in theory from the presumption of conformity, but in practice the two approaches achieve similar results.

Canadian Courts has invoked the presumption of conformity to resolve interpretive problems in many domestic laws such as in ordinary statutes36, the Criminal Code,37 the Civil Code of Quebec38 and even the constitutionally-entrenched Charter of Rights and Freedoms.39 In 2007, R. v. Hape40, the Canadian Supreme Court in a majority decision under the heading ? “Conformity with International Law as an Interpretive Principle of Domestic law:” held that it is well established of statutory interpretation that legislation will be presumed to conform to international law. The presumption of conformity is based on the rule of judicial policy that, as matter of law, courts will strive to avoid constructions of domestic law pursuant to which the State would be in violation of its international obligations, unless the wording of the statute clearly compels that results.” In 2009 Health Services case41, the Supreme Court of Canada revised its interpretation of the freedom of association right established by section 2(d) of the Canadian Charter of Rights and Freedoms to conform to Canada’s obligations under the 1966 International Covenant on Economic, Social and Cultural Rights42, the 1966, International Covenant on Civil and Political Rights,43 and ILO Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize44 and the Court observed that it was applying the presumption of conformity of International law to the Charter. In short, International legal principles are normally applied in Canada but the problemis how to use internationalmaterials in a principled and coherent fashion,45 which is yet to be settled.

(D) France : Under French law the ratified treaties are considered to be equivalent or even superior to domestic legislation46. However ratification must be approved by Parliament, especially(Article 52 of the French Constitution) where the treaty, “modifies provisions which are matters for statute”. In such situation, incorporation is either redundant or little required.

(E) INDIA: Under Article 73 of the Constitution of India, the Central government has the executive power to enter into and implement international treaties under Articles 246 and 253 read with Entry 14 of List I of the Seventh Schedule of the Constitution. The executive powers are coextensive to the legislative power.

– Atreaty may be implemented by the executive power, but when the implementation of a treaty requires legislation, Parliament (not the states) has exclusive powers to make a statute or legislation under Article 253 of the Indian Constitution. However, this has been criticized for subordinating the position of the States. Anyhow, treatypower is not above the Constitution but subjected to the fundamental rights and other provisions of the Constitution including the basic structure doctrine. Therefore, in the name of implementing a treaty, Parliament cannot take away the fundamental rights or change the basic structure of the Constitution”47. Anew wave of recognition and approach had also developed in February 1988 in Bangalore, India known as the Bangalore Principles.48

– Indian Judiciary has broadened its role through PIL (Public Interest Litigation) and has changed from a positivist dispute-resolution body into a catalyst for socio economic change and protector of human rights and environment49. The following cases will depict the position that how International law has been implemented at the domestic level by the Supreme Court of India.

– In Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey (1984)50, the Supreme Court held as under:

The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament National Courts cannot say “yes” if Parliament has said no to a principle of international law. Nations Courts will endorse international law but not if it conflicts with national law. National courts being organs of the National State and not organs of international law must perforce apply national law if international law conflicts with it. But the Courts are under an obligation within legitimate limits, to so interpret the Municipal Statute as to avoid confrontation with the comity of Nations or the well-established principles of International law. But if conflict is inevitable the latter must yield. The Court relied on the proposition stated by C.J. Latham in Polities vs. The Commonwealth.”51

– In Vellore Citizens Forum v. Union of India52 (1996) – the Supreme Court has held that the precautionary and polluter pays principles are part of the environmental law of the country and further observed, “that the rule of customary international law which are not contrary to the Municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of law.”

– In People’s Union of Civil Liberties v. Union of India53 (1997) the Supreme Court has further re-emphasised that “it is almost accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law.”

– In Vishaka and Others Vs. State of Rajasthan54, the Supreme Court while laying down sexual harassment guidelines, relied on theAustralian High Court Teoh’s case invoking the doctrine of legitimate expectation and observed that “the international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. The High Court ofAustralia in Minister for Immigration and Ethnic Affairs v. Teoh (128 Aus LR 353) has recognised the concept of legitimate expectation of its observance in the absence of a contrary legislative provision, even in the absence of a Bill of Rights in the Constitution ofAustralia.”

– In State of West Bengal Vs. Kesoram Industries Ltd.55 (2005) the Supreme Court explained the two doctrines as under:

“499. It is true that the doctrine of ‘Monism’ as prevailing in the European countries does not prevail in India. The doctrine of ‘Dualism’ is applicable. But, where the municipal law does not limit the extent of the statute, even if India is not a signatory to the relevant InternationalTreaty or Covenant, the Supreme Court in a large number of cases interpreted the statutes keeping in view the same.

500. A treaty entered into by India cannot become law of the land and it cannot be implemented unless Parliament passes a law as required under Article 253.”


The Doctrine of legitimate expectation as developed through the principle of incorporation through Australia Teoh’s case56 in India Vishaka’s case57 but rejected in Canada in Bakers case has led to the pertinent questions of “What can be considered a legitimate expectation?” which follows from the question “What can I expect?”. The Courts have left these questions unanswered and yet remain silent on this issue, and rightly so. On the very surface itself, one can estimate the avalanche of litigation that would ensue if such expectation was backed by common law to mean something outside the purview of what has been written (as law) and what has been decided (in common law). Such an “expectation” would not only condemn the State to be answerable for actions in the light of unforeseeable duty cast upon them, but also completely override the written law of the land. The State would be subjected to frivolous litigation in light of unlimited expectations, which to the common man (but not the reasonable man) in the common usage of the term could be construed to mean anything under the sun and the burden would shift to the Courts to determine what a legitimate expectation is and what can be claimed. In fact, an even greater problem with this undefined expectation is the impact on the written law and the Constitution itself, for the written law would be completely disregarded and the Constitution would lose all purpose and relevance as the Judiciary would become the supreme authority to decide what can be expected and on the basis of those expectations, direct the other organs of the Government to do as it directs. Needless to say, this problem attached to expectation would be magnified in the light of International standards and agreements. Another question, namely “Who can expect?” has also not been answered, which in itself could overrun the Sovereignty of a nation. If companies or legal persons were to be afforded the same status as a person and non-citizens as citizens in the light of legitimate expectation, the day won’t be far when MNCs from around the world would come knocking at the door “legitimately expecting” business, benefits and what not in the light of International Trade Agreements between other countries.58

Seen in the light of the decisions in Teoh’s Case and in Vishaka’s case in India, one can infer that the “legitimate expectation” is limited with regard to certain human rights, which are in conformity with the principles found in their Constitution and are nothing but a mere extension or recognition of their already existing rights. The Doctrine does not, in any way, confer rights upon individuals which they do not possess on their own.


The new democracies which have emerged at the end of 20th Century have incorporated a chapter of rights reflective of International human rights in their domestic Constitutions. In countries like UK, where there is no written constitution, the Human RightsAct, 1998 authorises Courts to review whether domestic legislation is compatible with the rights protected in the ECHR59. The following some new Constitutions have inserted few clauses of International human rights into the domestic Constitution System.

– In the Constitution of South Korea 1987,Article 6(1) states that “treaties duly concluded and promulgated under the Constitution and the generallyrecognised rules of International law shall have the same effect as the domestic laws of the Republic of Korea.

– In the Constitution of Bosnia and Herzegovina, 1995 (amended in 2009) (Annexure-I

– Additional Human Rights Agreements to be applied in Bosnia and Herzegovina) mandates a State duty for implementation and compliance (Article II paras 4,7 and 8). The Constitution under Article II para 1 and 2 imposes a State duty to “ensure the highest level of internationally recognised human rights and fundamental freedom, and gives “rights and freedoms protected in the European Convention on Human Rights (ECHR) and its Protocols shall apply directly to Bosnia and Herzegovina. These shall have priority over all other law”. That is to say, a superior status in the domestic legal system.

– The CanadianCharter of Rights and Freedoms


incorporates both the International Covenant on Civil and Political Rights 1966 ((ICCPR) and International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) into the Act.

– In the Constitution of South Africa, 1996, Article 39(1)(b) and (c) – Interpretation of Bill of Rights provides that when interpreting the Court, tribunal or forum must consider International law and also consider foreign law.

A further trend (which is not a new phenomenon) where the nationalConstitutions may function like treaties between the sub units of a State or between different ethnic groups within a State. For instance, The Articles of Confederation by 13 States of America upon Declaration of Independence in 1776 was seen as a treaty between sovereign states. In 1787 US Constitution maintained this treaty spirit and adopted federal State arrangement60.

The Spanish Constitutionof1978 which grants ethnic and regionalgroups the right to autonomy; specifically allowing bordering states with common ethnic, cultural and historicalto accede to self-governing autonomous communities. These autonomous communities have wide legislative and executive power – a high-degree of autonomy!

The PeaceAccord between Republics of Bosnia and Herzegovina subsequently became part of their Constitution and for this reason the Constitution annexes so many International human rights treaties thus giving each republic a Sovereign – like status.

The Canadian Charter of Rights and Freedoms, Section 33 permits the legislature of a province to declare certainActs operative notwithstanding any inconsistency with the Charter. Canadian States are given a constitutional privilege to have provincial laws in defiance of the national Constitution61. Thus, the Constitutions which are treaty have become more self-sustaining and keeping the whole state together.


The global constitutional map looks completely different at present, what it was 50 years ago. The complex phenomenon of globalization has further converged inevitability.62 After the Second World War, the pace of change in International law has become different both in terms ofmaking oftreaties and the ever evolving and expanding norms ofcustomaryInternational law.63 The doctrine of Incorporation must be understood more accurately as a source, and not as such a part, of the common law.64 However, this has led to a degree of pressure for the domestic courts to afford greater recognition in domestic law to unincorporated treaties and to new life being breathed into very old doctrines about the incorporation of customary International law into domestic law. Thus, the recent trends of Doctrine of incorporation coupled with the doctrine of “legitimate expectation”, (if not properlyand specifically answered)can be quite a volatile combination for the country whichaccepts and applies it. The interactions between International and national Courts, like the interactions between International and national legalorders, may straddle fromco-operative dialogue and willingness to accommodate to outright competition with the other. This reveals that there is no general theory either in constitutional law or in Court decisions on the relationship of International law and municipal law. But the practice in common law legal system flexibility in the elements of borrowings/ migrations of International law to national law which may thus serve as a general theory. In conclusion, every nation calls for the openness of International law and the slogan for everyone at domestic level is to “connect” with the reality of global culture.65