Relationship between International

law and Municipal Law

Interaction between the International legal
order and municipal legal orders

Spheres of functioning not mutually exclusive. Their interaction presents tremendous

consequences for the conduct of human affairs, nationally and internationally. Hence,
the need to analyse how their relationship works- doctrinally and in practice.
Doctrinal Analysis

Doctrinally, the nature of their relationship depends on whether they are considered to
be a part of the same juridical reality- Depending on the same, there are 4 possible
attitudes that could be adopted towards the relationship between IL and municipal law.
 Monism where in IL takes primacy over municipal law in international and
municipal decisions
 Dualism where IL takes primacy in international law decisions and municipal law
takes primacy in municipal decisions
 Monism in reverse wherein municipal law takes primacy in international and
municipal decisions. Not at all conducive to maintenance of international peace
 Harmonisation that eliminates any sort of conflict between IL and municipal law-
they are read together harmoniously
Monism- Kelsen, Duguit, Wright

Monism sees law as a unified branch of knowledge whether it applies to persons or

entities or States.
If international law is taken to be ‘law’, both IL and municipal form a part of the
same phenomenon deriving, ultimately, from a grund norm- a unitary order through
which they regulate conduct of men immediately or mediately.
From the monist perspective, IL is superior to municipal law as the former
determines boundaries of State competence. As a result, rules of IL are given primacy
over rules of municipal law.
Critique of the Monist perspective

Very sound in theory but doesn’t comprehensively capture reality.

In practice, each State sovereignty is given primacy. Only that part of IL is

applicable to each State to which it has expressly or impliedly consented
Dualism – Anzilotti, Triepel

Developed at a time when the concept of sovereignty was gaining strength (19 th
century), dualism is based on the absolute sovereignty of States. It proposes that IL
and Municipal law are two separate, distinct, self-contained legal systems.
 Triepel- The systems are entirely distinct in nature in terms of the social relations
they govern, their juridical origins, and the source of their rules
 Dualism gives primacy to the will of the State - Application of IL requires
‘transformation’ of international law into domestic law to make international law
binding on domestic authorities. The State is free to elect its mode of
transformation. National law has priority over international law that has not been
so incorporated.
Critique

 International law does not bind just States. Its subjects include international
organisations and to some extent, even individuals.
 Certain principles of IL are also binding even against the will of States.
The proposition of dualism is that IL and municipal law are two separate, distinct,
self-contained legal systems. However, the distinction on which this proposition is
based is not true anymore. IL applies to States, and also, international organisations
and individuals. In the end, IL regulates conduct of individuals; only, it does so
mediately and through the State.
Transformation/Specific Adoption theory

Transformation- Extreme dualist position

 Presupposed inapplicability of IL by itself
 Requires transformation of every particular rule of IL into municipal law through
agencies of sovereign will.
 Criticised- A lot of international rules are applicable without specific adoption.
The theory confuses legislative action for implementation with adoption.
Delegation Theory

 By critics of the transformation theory.

 Instead of every international rule needing to be incorporated into the municipal
law through agencies of sovereign will, this theory allows the Constitution to
determine the application of IL in general.
Harmonisation

Municipal law and international law systems are viewed as derivatives from one
another as opposed to viewing them as a disconnected system.

Consequently, where any conflict arises between the rules of these systems, this
approach aims to read the provisions harmoniously without one taking primacy over
the other.
Conclusion

The theoretical controversy may continue indefinitely as not one theory presents a
full and accurate picture.
In practice, there is a mixture of the monist and dualist approaches- a mixture of IL
supremacy, municipal law supremacy, and harmonisation of legal systems. Each
situation is individually analysed to determine which law would take primacy.
Interaction between international law and
municipal law- In Practice
A) International law in Municipal law
(a) British Practice
 Rules of customary law
Treated as part of own law as long as not inconsistent with British statutes. This was
also affirmed in West Rand Central Gold Mining Co. v. King. The limits of
applicability of customary law would be as defined by Courts. In case of any
ambiguity, a presumption arises that the Parliament did not intend to violate IL.
Therefore, Courts would try to harmonise the both. However, where harmonisation is
not possible municipal law would prevail. This is because Acts of State and
Prerogative of the Crown do not fall within the purview of the Courts.
Treaties- Matters relating to negotiations, signatures, etc. are within the Prerogative of
the Crown. However, the following types of treaties need either assent or adoption by
the Parliament:
 Treaties which amend or modify Common Law or Statute Law
 Treaties which affect rights of British citizens
 Treaties ceding British territory
 Treaties conferring additional powers on the Crown
 Treaties imposing additional financial burden on the Government
 Treaties expressly providing for consent
In case of inconsistency, treaty-enforcing law would prevail over an earlier British law.
(b) American Practice
i) Customary rules- are a part of American law. Gray J in the Paquette Habana case
held that International law is a part of American law. He added that where there is no
treaty, etc, resort shall be had to customs and usages and as evidence of these, works
of jurists and commentators.
ii) Treaties- Article VI of the US Constitution states that all laws made in pursuance of
the Constitution and international treaties entered into under the authority of the USA
shall be the supreme law of the land.
The US Constitution puts treaties and state laws in the same category. In case of a
conflict, whichever is of the later date shall prevail. Also, the US Constitution would
always prevail.
In the case of United States v Palestine Liberation Organisation, the US ordered
closure of a PLO Observor’s Mission in the UN, New York. This closure order was
inconsistent with the UN HQ Agreement that required US to permit Governments
accredited to the world body to stay and work with the UN. The Federal Court of NY
held that both statutes and treaties are law of the land. They have to be reconciled where
possible. A statute may be given precedence only if the Court can discern a clear
intention of the Congress to override the Treaty.
(c) Practice in India

Article 51 of the Indian Constitution requires the State to endeavour to promote

international peace and security, maintain just and honourable relations between
nations, foster respect for international law and treaty obligations in the dealings
of organised people with one another, and encourage settlement of international
disputes by arbitration.

Article 253- Parliament has the power to make law for the whole/any part of territory
of India for implementing any treaty, agreement, convention, decision at international
conference, etc.
i) Customary law- Is a part of municipal law as long as it is not inconsistent with any
legislative enactments or provisions of the Constitution.
ii) Treaty law- There has been a shift in approach.

Initially, Courts refused to apply treaty law in India unless it was specifically
incorporated into the municipal legal system.
 State of Madras v CG Menon (1954)- Fugitive Offenders Act, enacted by the Br
Parliament, would be applicable only on incorporation; n/w A 372 since the said
Act was only for British possessions. India is not bound to extradite nationals to
other countries for trial.
Menon was arrested and produced before the Magistrate pursuant to warrants issued
under the provisions of the FoA for criminal breach of trust. Contended that the
provisions of the FoA were unconstitutional and void. The State contended that the
FoA was incorporated into the Indian legal framework by virtue of A.372 of the
Constitution and impliedly, by incorporation of the Indian Extradition Act.
 ADM Jabalpur v Shivkant Shukla (1975)- During the Emergency, all fundamental
rights were suspended. Thousands were detained without trial. Question was
whether A.21 was the sole repository of Right to life and liberty. Were the UDHR
& Covenants on HRs a part of Municipal law? No, not without specific adoption.
In dissent, HR Khanna J noted that municipal law and international law must be
harmoniously construed. Only in case of a conflict would municipal law prevail.
 Jolly Varghese v Bank of Cochin- Question regarding legality of deprivation of
personal liberty on failure to repay debt. Municipal Law prevails only if the
International treaty in question was neither specifically adopted nor transformed.
The question arose with respect to A 11 of the ICCPR and Order 21 Rule 37 of the
CPC. -Remedy for breaches of international law cannot be found in municipal
courts since international law per se or proprio vigore has not taken the force of
law or authority of the civil law till legislation is undertaken. Till then, it can only
inform and inspire judicial institutions. Court adopted harmonious construction
wherein A11 ICCPR that prohibits imprisonment for the sole reason of failure to
fulfil obligation and s 51 CPC that allows arrest and imprisonment only where a
person has means to pay but refuses to pay in bad faith.
Vishakha v State of Rajasthan- PIL to enforce A.14,19,21 after a woman was
gangraped or opposing child marriage.
In the absence of domestic provisions, Conventions & norms are significant for the
purpose of interpreting FRs and guarantees of gender equality+right to work with
dignity.
Any Convention that is not inconsistent with and is in harmony with the FRs and
their spirit must be read into the provisions to enlarge the meaning and object of the
provision and promote constitutional guarantee. Ex- CEDAW and A 14,15,19,21 w.r.t
sexual harassment at workplaces.
 Gramophone Co India v BB Pandey- A consignment of cassettes from Singapore
were awaiting discharge at Calcutta port. Their final destination was Nepal. Piracy
was alleged and the Registrar of Copyrights was moved for action under section
53 of the Copyrights Act. Registrar conducted an enquiry and ordered halt on
import. HC held that docking at Calcutta awaiting discharge did not amount to
import under Section 53 and therefore, the Registrar had no power. SC reversed
the decision of the HC.
 The SC held that the comity of Nations requires that rules of IL be
accommodated in municipal law even without express legislative sanction.
However, where the rules are in conflict, regard must be had to sovereignty and
integrity of the Nation and supremacy of the constituted Legislature.
 SC reconciled s.53 with the 1965 Convention on Transit Trade of landlocked
States underwhich a country could refuse to allow transit of goods to protect IPRs.
It went on to hold that thought the infringing goods weren’t of Indian origin or
meant for the Indian market, they were subject to IL and IP law.
Apparel Export Promotion Council v AK Chopra- Superior officer guilty of
attempting to molest- dismissed from service. HC set aside the dismissal saying the
alleged act of molestation did not happen yet. The SC re-imposed the dismissal. It
adopted the definition of sexual assault as given under CEDAW and held that even at
attempt to molest constituted sexual harassment.
 International instruments cast an obligation on the State to gender sensitise
laws and Courts are obliged to ensure that their message is not drowned.
 As far as possible, Courts must give effect to principles contained in international
instruments.
 International conventions and norms must be given due regard in interpretation of
domestic laws especially when there is no inconsistency with domestic laws and
there is a void in domestic laws.
 Chairman, Railway Board v Chandrima Das (2000)- Gangrape of a Bangladeshi
woman- relief of compensation sought under public law. International Covenants
must be respected by all signatory States. Meanings given would help in effective
enforcement of rights and therefore, must be read into domestic jurisprudence.
Municipal law in International law

General Rule : The general rule with regard to the position of municipal law within
the international sphere is that a state, which has broken a stipulation of IL, cannot
justify itself by referring to its domestic legal situation. It is no defence to a breach of
an international obligation that the State was obeying dictates of its internal laws.
Else, international law would be evaded simply by domestic legislation.
This is evident from A 3 of the International Law Commission’s Articles on State
Responsibility “The characterization of an act of State as internationally wrongful is
governed by international law. Such characterization is not affected by the
characterisation of the same act as lawful by internal law.”
For instance, A 27 of the VCoLoT 1969 – In so far as treaties are
concerned, a State cannot invoke provisions of its internal law
as justification for failure to carry out an international agreement.
A. 46 provides that a State may not invoke the fact that its
consent to be bound by a treaty has been expressed in violation
of a provision of internal law regarding competence to
conclude treaties as invalidating consent.
 Alabama Claims Arbitration case of 1872- US objected to Britain allowing a
Confederate ship to sail from Liverpool to prey on American shipping. It was held
that the absence of Br legislation necessary to prevent the construction or departure
of the vessel could not be brought forward as defence- Br was held liable to pay
damages for the depredations caused by the warship in question.
 Polish Nationals in Danzig case- Polish nationals in Danzig were being
discriminated against in violation of obligations under A.104 of the Treaty o
Versailles and A.33 of the Convention of Paris. A dispute arose, in this context,
regarding the application of discriminatory laws of Danzig. Question was whether
the High Commissioner of LoN would have jurisdiction. Held that it had
jurisdiction. A State cannot adduce as against another State its own Constitution with
a view to evade obligations incumbent upon it under IL or treaties. There is a general
duty to bring municipal law into conformity with obligations under international law.
 As decided in the Exchange of Greek and Turkish Populations Case, a state which
has contracted valid international obligations is bound to make in its legislation such
modifications as may be necessary to ensure the fulfilment of the obligations
undertaken. If it does not do so, a state cannot rely on her own legislation to limit the
scope of her international obligations.
International Courts and tribunals have constantly expressed supremacy of IL over
municipal law. However, this does not mean domestic provisions are irrelevant or
unnecessary.
 On the contrary, internal rules are vital to discover a State’s legal position on a
variety of topics. International Courts would have to study relevant pieces of
municipal legislation. For instance, in the Serbian Loans case of 1929, crucial
issues turned upon the interpretation of internal law.
Certain Serbian loans were issued- to be repaid in Francs or gold. At the time of
repayment, franc had begun to depreciate and therefore, creditors wanted the debt to
be repaid in gold. Serbia alleged that the obligations were subject to law of France
and the said law prohibited repayment in gold. Held that the said obligations were
governed by Serbian law and also, even if they were held to fall under Fr law, Fr law
did not prohibit any compliance/repayment in gold. The gold stipulation was void
only where it related to a domestic transaction.
 Further, a Court may turn to municipal law concepts where necessitated, A. 38 (1)
(c). Must do so carefully; no automatic transformation should occur.
 Moreover, International Law leaves certain questions to be decided by national
law. Examples of these questions are those related to the spheres of competence
claimed by States as regards State territory, territorial sea, jurisdiction, and
nationality of individuals and legal persons, or those related to obligations to
protect human rights and the treatment of civilians during belligerent occupation.
Nottebohm Case , [1959] ICJ Reps 4 at 20-1.

(For facts, see the slides on Nationality)

 In Certain German interests in Polish Upper Silesia case, the PCIJ declared that
“From the standpoint of IL and of the Court, which it its organ, municipal laws
are merely facts which express the will and constitute the activities of the States,
in the same manner as do legal decisions or administrative measures. The Court is
certainly not called upon to interpret Polish law as such; but there is nothing to
prevent the Court’s giving judgment on the question whether or not, in applying
that law, Poland is acting in conformity with its obligations towards Germany
under the Geneva Convention.”