RELATIONSHIP BETWEEN NATIONAL LAW
AND INTERNATIONAL LAW
PRACTICAL REQUIREMENT OF
STUDYING THE RELATIONALSHIP
BETWEEN THESE LAWS
THEORIES OF RELATION BETWEEN THE
TWO LAWS: MONISM AND DUALISM
MONISM
That international law and national law are parts of the same
system, international having a higher place in the heirarchy
Hans Kelsen – the positivist monist
Hersch Lauterpacht – the naturalist monist
Monists assume that national and international laws deal with the
same subject matter and individuals are the ultimate and most
important subject in both the cases.
Monist give prevalence to international law in cases of conflict
Monists allow the national judiciary to apply the rules of
international laws even if not adopted by the national legislature
DUALISM
This theory regards that national and international laws are
two different systems operating in two distinct spheres
Triepel is one of the most famous dualist. He accepts that
conflicts may occur between the two systems and a single act
may be justified in national law and at the same time illegal in
international law and vice versa
This theory gives primacy to national law in case of conflict
National court can’t apply international laws unless
incorporated by the legislature in national laws
Dualists also accept that both types of laws deal with the
same subject matter
THE THIRD VIEW
This third view is different from both monism and dualism.
This view is promoted mainly by Anzilotti and Fitzmaurice.
These scholars deny individuals from being subjects of
international law.
They argue that the two laws apply in two distinctly different
spheres and therefore there is no chance of conflict between
them.
Even if there is any conflict in the obligations, national courts
shall apply national laws and international courts shall apply
international laws. In this way this opinion resembles and is
practically similar to dualism.
COMPARING MONISM AND DUALISM
MONISM DUALISM
Individuals are the main and State are the main subject of
ultimate subjects of international law. Individuals are
international law. secondary.
All laws are based on certain National laws are commands
basic and general principles and international laws consent
National courts can apply National courts can not enforce
international rules even without international rules unless
specific adoption. adopted specifically.
International and national laws National and international laws
are parts of the same system. are two separate systems.
In cases of conflict international Upon conflict national courts
law prevails over national law can apply only national laws
PRACTICES OF THE STATES
Role and relevance of state practice
Comparing the practices of the states with the theories
Generally prevalent practices among states.
Classification of international obligatons by way of state
practice
PRACTICE OF THE UNITED STATES
CUSTOMS are considered as part of their national law.
In paquete habana case it has been held that international
customs are part of the supreme law of the land.
Treaties, unless contrary to their constitution, are part of the
national law but in case of conflict constitution prevails.
Treaties conflicting with any municipal law, the later in date
shall prevail.
Self executing and non self executing treaties
BRITISH PRACTICE
Regarding customs it was held in Chung chi cheung vs. R.
that an international custom can not be applied by the British
courts unless adopted by the national legislature
Regarding treaties, the British practice classifies the treaties.
Treaties affecting rights and liabilities of the british under
common law or imposing burden on the purse of the state
require consent of the parliament for their enforcement.
INDIAN PRACTICE
Article 51 of the constitution.
In Indian practice international custom is given a respectable
place.
In case Annakumar Pillai Vs. Mutthappaiyyal, it was held that an
established international custom could be enforced by the Indian
courts even in absence of any national legislation to that effect.
Regarding treaties, the Indian rule is that they are not enforceable
unless enacted by legislature but the court in recent cases, has
interpreted so as to make the international obligations fulfilled.
In Gramophone co. of India ltd Vs. B B Pandey, a provision of
municipal law was interpreted so as to fructify the treaty law.
In jolly George Vergese ‘s case also, the court interpreted the
national law liberally, so as to apply and enforce international
obligation
