Lt 3-Feb 16 2024
International Organisations
United Nations *international legal personality
APEC
World Bank
World Trade Organisation
World Health Organisation
European Union *international legal personality *advanced *have a lot of power
North Atlantic Trade Organisation *international legal personality
International legal personality
*International separate legal personality: personality distinguishes the collective entity (the org) from the
members
• can sue and be sued
• can enter contracts
• separate liability
• can own properties
• other possible consequences: privileges and immunities, concluding international agreements
Rights and obligations of different organisations: (1) Treaty (2) implied power of int org
United Nations Charter (1945)
Art 1: Purposes of UN
Art 25:
Art 39:
Achievements of UN
Maintenance of peace and security
- Promotion of peaceful settlement of disputes likely to endanger peace
- Self-determination of peoples
- Economic and social cooperation
- Human rights
- Disarmament
- Codification and progressive development of int’law
Dispute Settlement
- Diplomatic means: negotiations, mediation, inquiry and conciliation
- Legal means: litigation and arbitration
- Art 33:
ICJ (deals with states)
- Art 35:
- Contentious jurisdiction of ICJ Art 36:
- Advisory jurisdiction of ICJ (no binding force, but diplomatic force) Art 65-68:
ICC (deals with individuals)
- Not directly related to UN, founded on the Rome treaty
Relationship between international law and municipal law
A. Domestic law as a source of international law Art 59
B. Primacy of international law Art 27 VCLT, Art 32 ILC ASR
C. Incorporation of notions from domestic law in international law e.g., Rules on the treatment of foreign
nationals, Rules on the protection of investment by foreign corporations
D. Domestic law as a fact before tribunal law
E. Duty to legislate (?)
- Better seen as a duty to comply with a State’s international obligations, discretion of states to
choose its means
- Treaties may impose specific obligations to legislate or take other appropriate measures e.g.,
Genocide Convention (1948) Art 5-8
- Incorporation through legislation, HK: ICCPR incorporated through human rights veil
Theories on the relationship between International law and Municipal law
The two principal theories of the relationship between International law and Municipal law are known as
Monism and dualism. As per the beliefs of Monism, International law and state’s Municipal law are two
components but complementary aspects of one single system. According to dualism, they are entirely
distinct and different legal systems on their own. International law has an intrinsically different character
from that of the state law, because in International law a large number of the State’s legal system are
involved, the dualist theory is sometimes known as the pluralistic theory.
To know the relationship between International law and Municipal law, it is crucial to understand what these
two laws actually are. The rules and regulations which deals with the conduct of states is known as
International law. In order to simplify we can say, set of principles which the states can invoke or apply
while dealing with other states or international organizations. On similar grounds, it is also called as “the law
of the nations”. On the other hand, The Municipal law is known as the internal law of the land.
Monistic theory
International law operates only at the International level and the Municipal law operates only on its local
jurisdictional limits. However, the advocates of natural law believe that Municipal and International law
form a single legal system, this approach is commonly known as Monism. treaty automatically become part
of domestic law without legislation
To have a better understanding of this topic it is crucial to understand what natural law is; natural law is
something that exists in isolation with the positive law. As the name suggests, it is determined by nature, the
law of nature is objective and universal in nature. From the time of inception, natural law is referred to
analyze human nature to deduce moral behaviour from nature.
The argument from the side of a Monist is pretty simple, they believe Municipal law and International law if
looked together is nothing but a single system. Modern writers who favor the monistic approach endeavors
that a major portion of their views are based on a strictly scientific analysis of the Municipal structure of
legal systems.
In a true monist country, there is no need for the translation of International law into Municipal law. Once
the state gives assent to the treaty, it automatically gets incorporated in its municipal law. This act of giving
assent to an International treaty or obligation will immediately incorporate international principles into
states’s Municipal law, (this is inclusive of customary International law).
International law can be applied by a Municipal Court, and can be invoked by citizens, contingent on the
fact that the international law is translated into the state’s Municipal law. A municipal court can declare a
law as unconstitutional if it contradicts International principles.
In a true monist state, if a national law contradicts International law then it becomes null and void, no matter
whether it is of constitutional nature or not. For example, a state gives assent to the Convention on the
Rights of Persons with Disabilities, however, a few of its national laws are in contradiction with the
conventions rights of the individuals who suffer from a disability. Then, a citizen of that country, who is not
getting deprived of the rights conferred by the treaty, can ask the national courts to apply the treaty.
In a Monist State, the International law gets automatically accepted and the contradicting part automatically
gets translated away the moment the State ratifies the treaty.
Kelsen: Grundnorm theory
For Kelsen, International and Municipal law is nothing but “manifestations of a single unit of law”. Kelsen’s
belief in the supremacy of International law is the result of his “basic norm”, which states that: ‘states should
behave as they customarily have behaved’.
International law is supreme in nature as it represents a legal order which is higher than Municipal laws, it is
because the International law is derived from the state’s practice on the other hand the Municipal law gains
its power from the state’s internal affairs.
Once it is accepted that International law is a system of rules of a legal character, it becomes impossible
according to kelson to deny that the two systems constitute as a single system.
The theory of International law and Monism doesn’t have any halfway house. Kelson observed natural law
and International law as a single and coherent system. According to him, International law is placed at the
top of the pyramid (as per his grundnorm hypothesis).
Dualist theory
Unlike Monists, dualists have stressed on the difference between International law and Municipal law and
have argued for the adoption of International treaties in the Municipal law of the State. According to
dualists, in absence of this adoption by the State the International law will not exist as a law. Doctrine of
transformation: treaties only create rights and duties after transformation by the Parliament
Two types of treaties: (1) incorporated treaties (2) unincorporated treaties “A treaty is not part of English law
unless and until it has been incorporated into the law by legislation” J H Rayner v Department of trade and
industry
The reason why dualists have this view is because they believe International law and Municipal law are two
different aspects of law and it would be unreasonable to take the two as a unity. As per their belief,
International law and Municipal law are two distinct and independent systems in itself.
In a dualist State, it is of utmost importance that International law has to be drafted in its Municipal law in
order to give it an effect. Apart from drafting it is the duty of the state to omit those laws which contradicts
the newly adopted International law.
If a dualist State ratifies a treaty or a convention, but does not create a law explicitly incorporating the treaty,
then their act of non incorporation violates the International law. If the State has not incorporated the
principles of a treaty as per its local laws which it has ratified earlier in the International sphere then, neither
the citizens of that country can invoke the International laws nor the courts can give its decisions based on
the principles of that treaty.
The United Kingdom is a country in which a dualist approach is dominant. International law becomes the
national law in the UK only if it is translated.
Hersch Lauterpacht on Dualism
Judge Lauterpatch was an advocate of natural law, he accepted that International law observes the precepts
of natural law.
For Lauterpacht, International law is more superior than municipal law, the rationale behind this view is
because it offers the guarantee rights for the individuals notwithstanding anything from which state he
belongs to. As per Lauterpacht the hierarchy of legal orders was:
Natural law
International law
Municipal law
For him whether it is International law or Municipal law, it is the individual who is the definitive unit of all
law. He answered a few fundamental questions of international law philosophy regarding the concept and
origin of international law.
He Criticized the doctrine of Heinrich Triepel’s doctrine of international legal obligation, meanwhile
agreeing with Kelsen that the binding force of law cannot be derived from the individual or common will of
the states.
For Lauterpacht, the international law is for the states and not for governments. For him, the international
community was a community of individuals, whose will is expressed by the states.
Triepel on dualism
Triepel treated the two systems of State law and International law as entirely distinct in nature. For him the
International and Municipal law exist as two separated, distinct sets.
Triepel made following contentions on the relationship between International law and state law:
Firstly he contended that, International law and Municipal law differ in the particular social relations that
they govern; State law deals with the individuals and International law regulates the relations between
States.
Secondly, he argues that their juridical origins are different; the source of Municipal law is the will of the
State itself, the source of International law is the common will of States.
There exist differences in: subjects, sources and content, also, it requires ‘transformation’ of International
law into Municipal law to make International law binding on Municipal authorities.
Triepel accepted that the basic will of the States was the premise of the legitimacy of International law; he
also pointed out that it is heavily relied upon the agreements between States, which not only includes treaties
but custom too and the common will was the most important and inventive source of International law.
Customary international law
Many states accept customary international law as an integral part of national law
Legal effect of customary norms differs
Doctrine of incorporation: if there is inconsistency, local law prevails Buvot v Barbuit
The problem of “lex posterior”
In a dualist country, International law must be translated into Municipal law, and the existing Municipal law
which contradicts International law must be “translated away”. The international law must be translated into
municipal law in order to conform to International law. However, the need for translation causes a problem
with regard to Municipal laws which are developed after translation.
In a monist country, a law emerges after the International law has been accepted and if it contradicts the
International law, it automatically becomes null and void. The International rule will continue to prevail.
In a dualist system, when the international law which is translated into a national law can be overridden by
another national law on the principle of “lex posterior derogat legi priori“, which means: the later law
replaces the earlier one.
This means that a dualist state willingly or unwillingly can violate international law. A dualist system
requires continuous screening of all subsequent national law for possible incompatibility with earlier
international law.
Difference Monism theory and Dualist theory
Monism (one single legal order)
• As per the advocates of natural law, Municipal law and International Law forms a single legal system.
• Monism is supported by the advocates of natural law.
• In Monism there exists no need for translation of International into Municipal law in order to give it an
effect.
• In a true monisitc country if a national law contradicts International Law then it becomes null and void.
• If a monist state ratifies a treaty or a convention, and does not create a law explicitly incorporating the
treaty then their act of non incorporation will not violate the International Law.
• In a monistic State International Law automatically gets embedded in the Municipal law and the
contradicting part gets automatically translated away.
• Supporters of Monism: kelson.
• State which follows Monistic approach: germany.
Dualism (separate spheres)
Municipal law and International Law are two different and distinct legal systems.
• It is supported by the advocates of positive law.
• In a dualist country there exists a need for translation of International into Municipal law in order to
give it an effect.
• In a true dualistic country, if a national law contradicts International law then it becomes doesn’t
becomes null and void, unless it is already translated in its municipal law
• If a dualist State ratifies a treaty or a convention, but does not create a law explicitly incorporating the
treaty, then their act of non incorporation violates the International law.
• International law does not get automatically embedded in the Municipal law.
• Contradicting parts of the Municipal law has to be amended by the state, as it does not get
automatically translated away in a dualist country.
• In the absence of translation of International law into Municipal law the International law will not exist
as a law.
• Supporter: hersch lauterpatch, triepel.
• Country which follows: United Kingdom, France
Methods of Implementing Treaties
There are a few principle methods by which states implement treaties and some of them are; Adoption,
Incorporation and Transformation.
Adoption
As per the monist theory, if International law is adopted as Municipal law, then the treaty is automatically
enforceable in Municipal law. However, some states need “translation” from the legislature for treaties to be
enforceable and they are; France, Spain, Belgium Netherlands, USA. Other countries like Germany and Italy
require an order of execution prior to the ratification (pre legislative consent). It is usually called quasi-
automatic incorporation, which authorizes the government to be committed towards the obligations of treaty
and incorporating the treaty into the Municipal legal sphere.
Incorporation and Transformation
This theory is usually practiced by the dualist states. The theory of Incorporation involves enacting and
implementing the legislation. International treaties have a higher status than that of the Municipal law
(however not more than the Constitution).
The key difference between an incorporated treaty and an adopted treaty, is the form it takes in Municipal
law. Thus adoption is heavily reliant on the attitude of municipal courts. On the same line of argument,
incorporation and transformation which leads to enactment of legislation, is not necessarily without any
barriers, as it is on the discretion of the court whether to apply the principles of treaty or not.
Judicial Discourse on Relationship Between International Law and Municipal Law
State of West Bengal v Kesoram Industries Ltd. & others
In this case, the Constitutional Bench of Supreme Court held that the Doctrine of Dualism is applicable in
India and not the doctrine of Monism however if the municipal law isn’t limiting the extent of the statute,
then, even if India is not a signatory to the treaty, the Supreme Court can Interpreted the Statute.
Civil Rights Vigilance Committee S.L.R.C. College of Law Bangalore v. Union of India and others
The High Court of Karnataka while deciding this case, defined the relationship between International Law
and the Municipal Law held that, as the increasing relevance of International law on the global and
municipal scenario, several unique and novel queries are starting to be raised regarding the relationship
between the two. However the Hon’ble High Court held that Municipal Law & International Law are
established on different sources can make different systems go simply incompatible.
Conclusion
Monism and dualism are usually conceived as two opposing theories of the International law and Municipal
law relationship. Monism and dualism are regarded by many modern scholars as having limited explanatory
power as theories as they fail to capture how International law works within States.
Notwithstanding anything, Monism and dualism hold power as analytical tools. They go about as predictable
beginning stages for examinations of the connection among International and Municipal law. Various late
choices in Municipal courts have seen a few researchers find Monism and dualism as potential approaches to
comprehend Municipal legal thinking on International law.
