Relation Between International Law and Municipal Law |
21 Aug 2024
Introduction
There are two principal theories on the relationship between international law and
municipal law:
Monism
Dualism
These are two diametrically opposite theories.
Monism
Kelsen, an Austrian Jurist is the leader of Monist school of law.
The Monists hold the view that international and municipal law are a part of one legal
system.
They contend that both international law and municipal law not only resemble each
other but also spring from the same grundnorm or standard which is the fountainhead of
all laws.
Delegation theory
The Monists support this theory.
According to this theory international law will apply to municipal law without any
specific delegation.
According to this theory there is no transformation of international law into
municipal law.
The process of creation of municipal law is prolongation of one single act of creation
i.e. creation of international norms.
The theory, therefore, attaches primacy to international law over municipal law
Hungary v. Slovak Republic (2012)
This case is related to the prohibition of entry of President of Hungary in
Slovak Republic.
The judgment was a result of Hungary’s appeal in the European Union (EU)
Court against Slovak Republic.
The Court held that the EU law has to be read in consonance with the
international law and the international law is the part of EU law.
The Court observed that according to international law the head of state enjoys
a particular status in international relations which entails privileges and
immunities.
Dualism
The proponents of Dualism are Triepel and Anzilotti.
The dualists give primacy to municipal law and consider it superior.
Dualists contend that the international law and the municipal law have no relation to
each other.
They hold that international and municipal law hold a completely different character.
Dualists give three reasons in support their stance:
Aspects International Law Municipal Law
Source Common will of States Will of the State
Subjects States Individuals
Law between sovereign states and hence Law of sovereign
Substance
a weaker law over individuals
Transformation or Specific Adoption Theory
The Dualists support this theory.
According to this theory, international law rules become binding on municipal
courts only if they are transformed into municipal legislations.
According to this theory there is a difference between international treaties which is
in the form of promises and the municipal legislations which are in the form of
commands.
Therefore, there must be a transformation of international law in the form of
municipal law.
Practice Followed in England
International Custom
Incorporation Doctrine:
This doctrine was propounded by Sir William Blackstone.
This doctrine emphasized that customary international is deemed
automatically to be a part of common law.
This doctrine was favored by the English Courts during 18th century.
However, in 1876 in the case of R v. Keyn (1876), the position changed and the
Court held that customary international law could never be British municipal
Courts unless they were embodied in the British statute.
The 20th century witnessed a reversion to the doctrine of incorporation with
certain exceptions.
In Chung Chi Cheung v. R (1939), the incorporation doctrine was revived with
the exception that if there is an inconsistency between the municipal law and
the international law the former would prevail over the latter.
International Treaties
In England all treaties do not come into force automatically.
There are two classifications done here:
Treaties affecting private rights which require modification of common law
or statute must receive Parliamentary assent through an enabling act of
Parliament.
Treaties which are not of primary importance do not require legislative
action for implementation.
For example, treaties modifying the belligerent rights of Crown when engaged
in maritime warfare do not require maritime warfare for their
implementation.
Practice Followed in America
International Customs
With regards to international customs the American practice is similar to practice in
Britain.
In United States v. Malekh (1960) the Court observed that the international
customary norms are a part of law of land.
In Tag v. Rogers (1959) the Court held that international customs cannot be given
effect to when they come in conflict with clear and unambiguous statute.
International Treaties
American Courts have drawn a distinction between self-executing and non self
executing treaties.
Self-Executing Treaties Non-Self Executing Treaties
These are part of rule of land and do
These treaties require legislation and
not require legislative action for their
the American Courts are not
enforcement within the municipal
automatically bound by them.
field.
The question is how to determine which treaty falls under which head.
The necessary consideration here would be intention of the signatory parties and
the surrounding circumstances.
Practice Followed in India
International Customs
The doctrine of incorporation propounded by Blackstone is not followed in India.
Article 51 (c) of the Constitution of India (COI) is the guiding light in this regard
which provides that the State shall endeavor to “foster respect for international law
and treaty obligations.”
However, this does not mean that international law is not given due regard in India.
In the case of Annakumaru Pillai v. Muthupayal (1907), the Supreme Court
recognised the existence of historic title on the basis of prescription and
acquiescence. Thus, the Court enforced international customary norm.
However, in the case of ADM, Jabalpur v. Shivakant Shukla (1976), the Supreme
Court rejected the argument that the Universal Declaration of Human Rights are
part of municipal laws. It was held that they are mere ethical rules. However, this
was touted to be a fallacious interpretation.
It is to be noted that the much-celebrated dissenting opinion of Justice Khanna in
the above case laid down that that where there is a conflict between the municipal
law and the international law the former would prevail.
However, in case two construction of municipal law are possible the Court
should lean towards the construction that in harmony with international law
or treaty obligations.
In Vellore Citizens Welfare Forum v. Union of India (1996), the Supreme Court
held that the precautionary principle and the polluter’s pay principle have acquired
a character of international custom and hence they are a part of Indian law.
Thus, the Supreme Court treats international custom as a part of Indian law in case
there is no conflict between International Law and Indian Law.
International Treaties
Constitutional Provisions
Article 246 of the COI provides that the Parliament can make laws on any
matter enumerated in the List I of Seventh Schedule. Entry 14 of List I deals
with entering into treaties and agreements and the implementation of those
treaties and agreements.
Article 253 of the Constitution provides that the Parliament can make laws
with a view to implementing the international treaties.
Treaty Making – An Executive Act
In the case of Union of India v. Manmull Jain (1954), the Court held that
treaty making is an executive act and not a legislative act. However, legislation
may be required to give effect to the terms of the treaty.
Implementation of Treaties in India
On the issue of implementation of treaties, the practice in India resembles both
England and the United States.
In India, international treaty calls for legislative cation if it affects application
of existing laws, imposes financial obligations or requires specific legislative
authority for execution.
The concept of self-executing and non –self executing treaties is also
recognized by the Supreme Court in India in the case of Maganbhai
Ishwarbhai Patel v. Union of India (1970).
Conclusion
The two theories monism and dualism provide for relation between municipal and
international law. These theories help in determining the effect of international treaties and
customs on municipal laws. These are diametrically opposite theories, and each State follows
its own practice.
