This Article is written by Debanjali Dey of 2nd Year of JB Law College, an intern under Legal Vidhiya
ABSTRACT
International law was traditionally meant to regulate relations between states at the international level. However, domestic courts today increasingly engage with international law while deciding constitutional and statutory matters. This paper examines the relationship between international law and domestic law and the extent to which domestic courts can apply international law when it is not incorporated into national legislation. It discusses the theories of monism and dualism and explains how states receive international law into their domestic legal systems. This paper further analyses the role of domestic courts in applying international law through direct, indirect and silent methods. Special focus is given to the approach of Indian courts, highlighting key judicial decisions where international law has been used to interpret and strengthen fundamental rights. The paper also highlights the constitutional limits on such judicial use of international law and examines the balance between legislative supremacy and judicial interpretation.
KEYWORDS
International law, Domestic courts, Monism and Dualism, Judicial Interpretation, Human Rights, Treaties and Customary law
INTRODUCTION
To what extent can domestic courts apply international law when it is not written into national legislation? An examination of this issue requires an understanding of what constitutes international law and the role domestic court plays within a legal system. International law refers to a body of rules governing relations among states. Oppenheim defined International law as, “Law of nations or it is the name for the body of customary laws and conventional rules which are considered to be binding by civilized States in their intercourse with each other.” Thus, International law encompasses treaties, customary practices, and agreements that create binding obligations between states. While International law mostly regulates relation between states, its relevance increasingly extends with the help of domestic courts. Domestic courts play a crucial role in the interpretation and implementation of international law. While they are not primary law-making bodies, their judgements give definite meaning to treaties and customary international law. Through this, domestic courts help in the evolution of legal norms over time. This paper further examines judicial approaches to the application of international law, with particular emphasis on Indian domestic courts. It also discusses the different mode through which international law operates within domestic legal systems, along with the limitations and challenges associated with such judicial engagement.
RELATION BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW
The relationship between international law and domestic law has been a subject of long debate in public international law. While international law governs relation between states at the international level, domestic law refers to the internal legal system. Domestic laws include the rules made and applied by national authorities for governing internal affairs. This leads to an important question: how do rules of international law become applicable within the domestic legal system of a State? To answer this question, scholars have developed two principal theories- monism and dualism. Monism believes that international law and domestic law form a single system. In this system, there is no separation between these two laws, once a monist state gives consent to an international law it automatically gets incorporated into the domestic law. Here international law prevails over domestic law. On the other hand, dualists have given importance to the difference between international law and domestic law. In this system, international law has to be drafted in the domestic law for it to come into effect. These theories explain the conceptual relationship between international law and domestic law, but they do not by themselves explain how international law operates with the domestic legal system.
The practical effect of international law within domestic legal system depends on how States incorporate international norms and how domestic courts interpret and apply them. States adopt different approaches to incorporate international law. In case of treaties, its application differs across states, in some states it takes precedence over domestic law while in others it is given a status similar to statutory law. Other states do not give precedence to treaties over their legislation except treaties such as protection of human rights. Besides treaties, customary international laws and general principles of law also play an important role. However, their role is limited compared to treaties, as they are unwritten sources of law. The applicability of these international norms depends on the approach adopted by the state and the interpretative role played by domestic courts. Courts act as the primary bridge through which international law is recognized, interpreted and applied.
APPLICATION OF INTERNATIONAL LAW BY DOMESTIC COURTS
While the incorporation of international law depends on the state, the actual application of international norms in practice is shaped by domestic courts. Courts play a significant role in determining whether and how international laws are applied. One of the key ways in which courts perform this function is through the direct application of international law, where international norms are applied as rules of decision in domestic cases. Direct application refers to the situation where domestic courts apply international law without incorporating them into legislation. In relation to treaties, this largely depends on the constitutional structure of the state. In dualist systems, treaties do not form part of domestic law unless incorporated while in monist or hybrid systems, some treaties may be directly applicable if their provisions are clear. Courts have also relied on customary international law particularly in areas such as sovereign immunity and humanitarian law, as seen in decisions of the Israeli Supreme Court concerning the application of customary rules in occupied territories. Similarly, courts in several jurisdictions have recognised the direct applicability of human rights treaties, as illustrated by decisions such as the German Constitutional Court`s ruling on Article 36 of the Vienna Convention on Consular Relations. Apart from direct application, domestic courts also rely on international law through indirect and silent application. Under indirect application, instead of applying the international norm directly the courts interpret the existing domestic statues in such a way that it is consistent with the international norm. This method is applied in both hybrid monist and dualist states. On the other hand, in silent application courts apply international norms but treat them as domestic law without explicit citation. Customary International Law (CIL) is often considered “part of the law of the land”. Courts may apply CIL rules as if they are common law rules, sometimes without mentioning their international legal source. Courts in both hybrid monist and dualist states apply international law- especially international human rights law because states voluntarily agree to be part of treaties creating obligations. In constitutional and human right cases, domestic courts rely on international law as an interpretative aid to give content and meaning to fundamental rights. This shows how domestic courts not only apply but also continuously shape international law.
INDIAN COURTS AND INTERNATIONAL LAW
In order to understand the role of international law in Indian courts, it is important for us to examine India`s constitutional position regarding the relationship between international law and domestic law. India follows a dualistic approach under which international law does not automatically become part of domestic law unless it is incorporated through legislation. Under Article 253 of the Constitution, treaties ratified by India do not automatically become incorporated into legislation, Parliament must enact legislation to give them effect. While Article 51(c) of the Constitution encourages the State to foster respect for international laws, it is placed within the Directive Principles of State Policy and is therefore non-justifiable. Though international law does not have direct enforceability in Indian courts but may be relied upon by the judiciary within constitutional limits.
The Indian judiciary has played an important role in maintaining the country`s international law obligations. There are certain rules that the Indian judiciary follows while interpreting domestic laws. For instance, when domestic law and international law are contradictory the court tries to give a harmonious interpretation or when there is an absence of domestic law on a subject the court resorts to international law. But when there is a conflict between domestic law and international law the courts always give priority to the former. While the judiciary tries to maintain harmony between domestic and international law, only the Parliament can remove the inconsistencies through its Constitutional framework. Indian courts have always relied on international law for dealing with cases on human rights. For example, in the case of Vishaka v. State of Rajasthan (1997), the Supreme Court was dealing with the issue of sexual harassment of women at the workplace. There was no specific domestic law in India to address this issue. In the absence of legislation, the court relied on international conventions, particularly the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to frame guidelines for the protection of women. The court held that international conventions and norms could be used to interpret fundamental rights under the Constitution as long as they do not contravene domestic law. This judgement shows how Indian courts rely on international law to fill legislative gaps and strengthen the protection of citizens.
LIMITATIONS
Despite the growing reliance on international law by domestic courts, its application remains subject to certain limitations. One major constraint is parliamentary supremacy, particularly in dualist systems like India, where international treaties do not become binding unless incorporated through legislation. Courts cannot override clear domestic law in favour of international norms, as doing so would threaten legislative authority. There are also concerns regarding judicial overreach, since excessive reliance on international law may blur the separation of power and rise questions of democratic legitimacy. Additionally, differences in domestic constitutional frameworks across states often lead to inconsistent application of international norms, reducing legal certainty. As a result, domestic courts must balance respect for international law with adherence to constitutional and legislative limits. Another limitation is the lack of uniformity in the approach adopted by domestic courts across different jurisdictions. Courts often differ in the weight they assign to international law leading to inconsistent outcomes. This uncertainty may reduce predictability in legal interpretation and create confusion regarding the legal status of international norms within domestic systems.
CONCLUSION
The interaction between international law and domestic courts reflects a careful balance between global obligations and national sovereignty. While international law does not automatically form part of domestic law in many legal systems, domestic courts have increasingly engaged with international norms in their judicial reasoning. Courts may apply international law directly in limited circumstances, particularly in monist or hybrid systems, and more commonly rely on it indirectly as an interpretative aid where domestic law is silent or ambiguous. In constitutional and human rights cases, international conventions have played a significant role in strengthening fundamental rights, as seen in judicial practices. However, the extent of such application remains constrained by constitutional limits, parliamentary supremacy and concerns of democratic legitimacy. This demonstrates that international law influences domestic decision-making not as a superior authority but as a guiding source. Ultimately, domestic courts can apply international law only to the extent that it does not conflict with existing legislation, thereby ensuring harmony between international obligations and domestic legal authority. This evolving judicial engagement highlights the growing importance of international law in domestic legal reasoning while reaffirming that its influence ultimately depends on constitutional structure, legislative intent, and judicial restraint.
REFERENCES
- Kavita Chandra, Nature and Definition of International Law, iPleaders Blog (Jan. 6, 2026, 12:06 PM) https://share.google/UcJKrEyUDc0ydZvxl
- Vishwas Chitwar, International and Municipal Law: An ultimate guide, iPleaders Blog (Jan. 7, 2026, 1 PM) https://share.google/IL0YWSKbct7vUQVQM
- Professor C. Economides, The Relationship Between International And Domestic Law, CDL-STD(1993)006, Eur. Comm’n for Democracy Through Law (Venice Comm’n) (1993), https://share.google/wdAcWu5OdhTGRVTp9
- David L. Sloss & Michael P. Van Alstine, International Law in Domestic Courts RESEARCH HANDBOOK ON THE POLITICS OF INTERNATIONAL LAW (2017), available at: https://digitalcommons.law.scu.edu/facpubs/965
- Vayuna Gupta, Using International Law In Domestic Indian Courts, 55 NYU J. Int’l L.& Pol. 1077 (2022) https://share.google/a4nZlaD0jT4vwpDU1
- Vishaka v. State of Rajasthan, (1997) 6 SCC 241 (India)
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