Relationship between international law and municipal law
Prepared by Law Expert Dr. Rekha Khandelwal
International law applies to relations between states and other subjects of international law, while national state law, called municipal law, applies to individuals within the state and to corporate bodies that have rights and duties under it.
Due to differences in the opinions of jurists on the question of relationship between international law and national law, many theories have developed. The main ones among these are as follows-
Theories developed on the question of relationship between international law and national law
- Dualistic theory,
- Monistic theory,
- Specific adoption theory,
- Harmonisation theory,
- Transformation theory,
Dualistic theory,
According to the dualistic theory, international law and the national law of different states are two different, separate and self-contained legal systems. Being a separate system, international law does not become a part of the internal law of the state until the rules of international law are applied in specific cases. This is because of their “adoption” by the internal law of the State and they apply as internal law, not as international law.
The dualistic theory was propounded by the famous German scholar Tripel in 1899. Later, the followers of this theory consider both international law and national law as two completely different legal systems because the nature of international law is fundamentally different from the nature of national law.
Dualists are of the opinion that both the systems are different from each other on the following grounds-
Regarding sources –
According to dualists, the source of national law is the customs developed within the boundaries of the state and the legislation enacted by the sovereign, whereas the source of international law is the customs developed between states and the treaties made by the states.
Regarding subjects –
According to dualists, the subjects of international and national law are different from each other. National law regulates relations between individuals and corporate entities and relations between states and individuals, while international law primarily regulates relations between states.
Regarding substances of law-
The substances of the two systems of law are also different. National law is law made by sovereign states that applies to individuals, whereas international law is law not over sovereign states but between them.
Regarding of principles –
Angelotti’s view is that national law is complied with because it is a principle of the State Legislature, whereas international law is complied with because of the principle of Pacta Sunt Servanda (absolute performance of the contract).
Regarding Dynamism of the subject matter –
According to Dualistics, the subject matter of international law has always been dynamic, whereas the subject matter of national law is limited.
According to Stark, since 1980, international law has expanded significantly in various fields, while the subject matter area of national law has remained limited.
According to Angelotti, these two systems are so different that no conflict is possible between them, but this does not mean that the rules of international law can never be applied by national courts.
National courts will apply rules of international law only when they are accepted as national law. This can only happen when international law, i.e. customary and treaty rules, become rules of national law through a process of specific adoption.
As far as treaty rules are concerned, they can be implemented only by transformation of the treaty into state law.-
The principles relating to the application of international law within the national territory are – specific adoption and – transformation –
Regarding the conflict between international law and national law, the decision given by the Permanent Court of International Justice in the Greco-Bulgarian Communities Case is important.
It held that the generally accepted principle of international law is that in relations between countries which are contracting parties to a treaty, the provisions of national law cannot prevail over the provisions of the treaty.
In its advisory opinion of 26 April 1988 on the applicability of obligations to arbitrate under the United Nations Headquarters Convention, 1947, the International Court of Justice stated that it is a fundamental principle of the International Court of Justice that international law prevails over national law.
“Monistic theory”
It was propounded by two German scholars Mosar and Martens in the eighteenth century.
According to the Monistic theory, only one legal system exists i.e. (the domestic legal order).
According to this principle, international law does not need to be incorporated into national law, as it is created by itself.
The Monistic theory was developed by the Austrian jurist Kelson in the early twentieth century.
According to the Monistic theory, all laws are made only for individuals. National law is binding on them directly while international law is binding on them through states.
Theory of Hormonisation –
Founder of the theory is O’ Connell.
According to this Theory, “A person neither spends his life exclusively in the legal system of the state nor in the international legal system. He comes under the jurisdiction of both because he spends his life in both. Thus, both Both legal systems are designed to solve the problems of individuals. Although international law and national law are autonomous in the sense that they relate to different aspects of human conduct, yet the goal of both is basically human welfare. Therefore, both Systems must be coordinated”
The coordination principle has been followed in many cases, those cases are- Craft Ltd. vs. Pan American Airways, R vs. Chief Immigration Officer Hinro Airport, Fondergill vs. Monarch Air Lines Ltd. etc.
Specific Adoption Theory –
According to the specific adoption theory, international law cannot be directly applied in the field of state law. To implement it, it is necessary that it be adopted or accepted specifically in the field of state law.
In the case of Jolly George v. Bank of Cochin, the Supreme Court of India stated regarding the International Covenant on Human Rights that the positive commitments of the State Parties motivate legislative action in the Convention, but it
A contract does not automatically become an applicable part of Indian law.
The passing of the Suppression of Unlawful Activities Against Safety of Civil Aviation Act 1982 by the Indian Parliament to implement the Tokyo Convention 1975, Vienna Convention on Diplomatic Conventions 1972, Hague Convention 1970, Montreal Convention provisions confirms this.
Transformation Theory
According to the transformation theory, in order to apply the rules of international law and especially international treaties in the field of state law, it is necessary to first transform them.
The practice of states indicates that states follow the principle that they consider most appropriate to their own political, social and economic systems.
To what extent is international law – customary and treaty – applied by states
State practice varies in this regard
Practice of Great Britain –
In Great Britain, customary international law and treaties are applied differently
1.Customary international law – Customary international law is considered to be the law of the United Kingdom, which is universally recognized or which has the consent of Great Britain, but those rules are applied at the same time, When they are not inconsistent with British Acts or previous decisions of the final authority.
This UK practice regarding rules of international law is known as the doctrine of incorporation.
The doctrine of incorporation has been applied in many cases in Britain. Those cases are Warvtt case, Trillett vs Wath case, Heath Field vs Chilton, Dolder vs Lord anting field, Bevish vaker, Novello vs To Good etc.
But in the case of R vs Kane, Justice Cockbern expressed a different view from the principle of incorporation and said that customary international law will become part of the law of the country only when it has been explicitly adopted by legislation, judicial decision or established practice.
The Doctrine adopted in the case of R vs Kane was known as the doctrine of incorporation.
Later in 1905, Lord Ulverstone reaffirmed the doctrine of incorporation in the case of West Rand Central Gold Mining Co. v. R. The principle of incorporation was approved in the case of Chung Chi Chung v. The King.
2. Treaties –
British practice in enforcing treaties is largely based on constitutional provisions.
Some treaties are binding on courts only when Acts relating to the treaty are passed by Parliament. These include treaties affecting individual rights or obligations, imposing financial obligations, or making provisions for their enforcement in courts. Summons will be enforced only after making a law or statute. Treaties of cession of British territories are an example of this.
It can be concluded from British practice that in case of conflict between British law and international law, British law will be binding on British courts.
Indian Practice-
Under Article 51 of the Indian Constitution, there is a provision for India’s general obligation towards the world. According to this article –
International peace and security should be enhanced.
There should be just and respectful relations between nations.
International law and treaty obligations should be respected in the interaction of states.
Settlement of international disputes through arbitration should be encouraged.
Although Article 51 considers customary international law and treaty law as equal, yet the application of customary international law and treaties can be discussed separately.
1. Customary International Law –
With respect to customary international law, Indian courts follow the principle of assimilation adopted by Great Britain. Thus, Indian courts will apply customary rules of international law if they are not overridden by express rules of national law.
In the case of ADM Jabalpur vs Shukla, Justice H.R. Khanna, in his dissenting opinion, ruled that if there is a conflict between national law and international law, the courts will enforce the national law.
The observation of the Supreme Court in the case of Gramophone Company of India Limited v. Virendra Bahadur Pandey was related to the binding force of customary rules of international law. The principle of inclusion was applied in this case.
2.Treaties – There are two schools of thought in vogue regarding the status of treaties in Indian law. According to the first school, treaties will not be binding on the courts until they are implemented by legislation.
Indian courts have ruled in a number of cases that legislation would be required to give express effect to a treaty.
These cases are – Virma vs. Rajasthan, Shivkumar Sharma vs. Union of India, Motilal vs. Government of Uttar Pradesh, Maganbhai vs. Union of India, Jolly George Varghese vs. Bank of Cochin etc.
In the case of Civil Rights Vigilance Committee Bengaluru v. Union of India, the Court held that if Parliament does not enact any law to carry out the obligations under treaties entered into by the Government of India with foreign countries, then in the absence of a law enacted by Parliament Courts cannot enforce compliance with the treaty obligations of the Government of India with foreign countries. This decision of the Court is in accordance with the dualistic principle.
According to the second school of thought, not all treaties in India require enforcement by legislation. Only those treaties which affect individual rights are required by legislation to be enforceable.
The second view has been adopted in the case of Maganbhai Ishwarbhai and others vs. Union of India.
In conclusion, it can be said that the second ideology seems more certain.
References – Book
Dr. S.K. Kapoor, Human Rights & International Law, Central Law Agency.
- CrPC
- Constitution of India
- Evidence Act
- Civil Procedure Code
- Indian Penal Code
- Jurisprudence
- International Law
- Law of Tort