Relation between International Law and Municipal Law

This article, “Relation between International Law and Municipal Law” is written by Shivani Louhan a 3rd year Law student at B.D.S School of Law, Meerut

Table of Contents

Introduction

There is always a dispute between different jurist about International and Municipal Law what are their position in different states and what happens if the situation arises when both of them clash with each other. So in this article, we are going to discuss the relation between the two.

Theories of Relationship

While International Law is applied in the relations of the States and to other subjects of International Law, national or State law which is called municipal law is applied within a State to the individuals and corporate entities which are the bearers of rights and duties thereunder. It might look like there is hardly any relationship between the two systems as they constitute two different legal systems each of which is designed to operate in its sphere and they are applied distinctly to their subjects by different courts, but it is not so

When there exists a conflict between the rules of International Law and municipal law, a Court is faced with the difficulty of arriving at a decision. Before an international tribunal, the question is one of primacy-whether International Law takes primacy over municipal law, or vice versa. If the conflict arises before a municipal Court, the answer depends on how far the constitutional law of the State allows International Law to be applied directly by the courts. The question of relationship of the two systems has acquired importance in modern International Law also because a very large part of it is directly concerned with the activities of individuals who come under the jurisdiction of municipal courts. Thus, it is in the municipal courts an increasing part of International Law is enforced.

The views of the jurists on the question of the relationship between International Law and municipal law are divergent which has led to the emergence of different theories. Prominent among them are as follows :

(1) DUALISTIC THEORY:

According to dualistic theory, International Law and municipal laws of the several States are two distinct, separate and self-contained legal systems. Being separate systems. The dualist view was developed by a prominent German scholar Triepel in 1899. For him, International Law and domestic or municipal law existed on separate planes, the former governing international relations, the latter relations between individuals and between the individual and the State. The theory was later on followed by Italian jurist Anzilotti. Starke says that the theory represents two entirely distinct legal systems.’ The above authors are of the view that the two systems of law differ from each other on the following grounds :

(a) Regarding Sources.-According to dualists, while the sources of municipal laws are custom-grown up within the boundaries of the State concerned and the statutes enacted by the sovereign, the sources of International Law are custom-grown up among the States and law-making treaties concluded by them.

(b) Regarding Subjects.-Dualists are of the view that the subjects of international and municipal law are different from each other. While municipal law regulates the relations between individuals and corporate entities and also the relations between the State and the individuals, International Law regulates primarily the relations between States.

(c) Regarding Substance of Law.- While municipal law is a law of a sovereign over individuals, International Law is a law not above, but between sovereign States. Its norms are created by its subjects themselves, i.e., by the States through agreements where essence is a concordance of the will of States or by other subjects of International Law.

(d) Regarding Principles.- Anzilotti is of the view that while municipal laws in a State are obeyed because they are the principles of State legislatures, International Law is obeyed because of the principle of pacta sunt servanda. Thus, while in municipal law there is a legal sanctity, International Law is followed because States are morally bound to observe them.

(e) Regarding Dynamism of the Subject-Matter.– While the subject matter of International Law has always remained dynamic, the subject matter of municipal law is limited.

These are the points of difference between the two systems, and therefore, they are applied distinctly in different areas. Therefore, a national court cannot apply a particular rule of International Law until that particular rule has been deliberately suitably transformed into national law, as by legislation.

Transformation of International Law into municipal law may take place according to the constitutional provisions of the States, and therefore the procedure may be different from State to State. The difference between incorporation and transformation is that the former adopts International Law into municipal law just because it is International Law, whereas the latter requires a deliberate act on the part of the State concerned. Further, incorporation implies that rules of International Law are part of national law unless excluded, transformation implies that rules of International Law are part of municipal law only if deliberately included.

According to dualists, municipal courts shall apply municipal law in case of a conflict between International Law and municipal law. Thus, municipal law shall have primacy over International Law according to this view. Further, when a case comes before the international court or tribunal, it applies International Law rather than municipal law in case of a conflict between them.

In the Greco-Bulgarian Communities case, the Permanent Court of International Justice stated that it is a generally accepted principle of International Law that in the relation between Powers who are Contracting Parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty.

Criticism

1. The view that international law and municipal law differ from each other implies that International Law cannot be a part of municipal law and can never operate as the law of the land unless they are specifically adopted or transformed through municipal custom or statutory enactment. It is not correct because there are certain fundamental principles of International Law which are binding upon a State, even against its own will.

2. It is not correct to say that International Law regulates the relations of States only. At present, it regulates certain activities of individuals as well. If individuals commit certain wrongs, they can be given punishment per the rules of International Law.

3. No doubt, pacta sunt servanda is an important principle of International Law, but it cannot be said that it is the only principle on which International Law rests. There are certain rules which are legally binding on a State.

(2) MONISTIC THEORY:

The monistic theory was pronounced in the Eighteenth century. It was put forward by two German scholars Moser (1701-85) and Martens (1756-1821). The monistic doctrine was later developed in the early twentieth century by the Austrian jurist Kelsen.

According to monistic theory, municipal law as well as International Law are parts of one universal legal system serving the needs of the human community in one way or the other. In the opinion of its theorists, the two together form a single legal order. International Law is therefore indistinguishable from the internal law of States and is of significance only as part of the universal legal order. They both are therefore species of one genus-law. Law is seen as a single entity of which the national and international versions are merely particular manifestations. Monism maintains that all laws are made for individuals only. While municipal law is binding on them directly, International Law is binding on them through States. Since both laws are meant to solve the problems of human beings in different areas; they both are related to each other. They believe that the whole legal system is one unified branch in which International Law operates as a part. Neither municipal law nor International Law is therefore above the system nor is separate from the system. The result is that international rules can be applied as such by municipal courts without any need for transformation.

Exponents of monistic theory rejected the alleged differences between the two systems regarding sources, substance and subjects as laid down by dualists. According to them, subjects of both systems of law are ultimately individuals. If one argues to the exponents of the monistic theory that International Law regulates the relations of States and not that of individuals, they ask, what is a State? According to them since a State consists of individuals, rules of International Law are ultimately binding on them only like municipal law, which concerns the conduct and welfare of individuals. Secondly, in both spheres, the law is essentially a command binding upon the subjects of law independently of their will. Thirdly, monistic theory maintains that International Law and municipal law, far from being essentially different, must be regarded as manifestations of a single conception of law. Monists lay down that International Law is superior even within the municipal sphere.

The above two theories regarding the relationship between International Law and municipal law have been prevalent for a long time. A question arises as to which of the above theories is correct. It may be said that no theory alone is complete and perfect. The practice of States shows that sometimes there has been the primacy of International Law over municipal law, especially when the case is being considered by the international courts and tribunals. However, in many occasions, there has been the primacy of municipal law over International Law, especially when the matter is being considered by the municipal court and the municipal law conflicts with the rules of International Law.

International Law and municipal law though autonomous in the sense that they are directed to a specific, and, to some extent, an exclusive area of human conduct, are harmonious in their totality because they aim to a basic human good.” Both systems should therefore be harmonious and should not allow to exist contradictory rules. However, if contradictory rules in fact exist, it does not follow that one of them must be void. It is one of the principal functions of juristic reasoning to eliminate contradiction by harmonising the points of collision, not by pretending that they do not exist, nor by crushing the one with the other.2 Hence, judges of all the courts-municipal as well as international courts, should aim at harmonising the systems rather than treating one system superior to another. The theory of harmonisation assumes that International Law, as a rule of human behaviour, forms part of municipal law, and therefore, is available to a municipal judge. However, in the rare instance of conflict between the two systems, the view acknowledges that the judge is obliged by his jurisdictional rules. Thus, neither municipal law nor International Law has supremacy over each other.

It may be stated that Dualistic and Monistic theories are traditional and most popular but no theory alone can be said to be appropriate. It is required that International Law and municipal law should be harmonized because it has been regarded that both have been made for human beings, and so, primarily there should not be any contradiction in them, and if contradictory rules appear, they should be harmonised. Harmonisation of rules is possible mainly in two ways. Firstly, it is the duty of the judges to eliminate contradiction by their juristic reasoning, and secondly, enactments in the municipal legal system of a State should not be made in such a way so that it is contradictory to the existing rules of International Law, and if contradiction exists, amendment should be made so as to avoid contradiction.

Practice Of States Regarding Relationships :

Practice of States suggests that States have chosen to follow that theory which they considered more appropriate per their political, social and economic systems. How far International Law-customary as well as treaties, are applied by them is different from State to State. The practice of some of the States are as follows:-

(1) Great Britain

In Great Britain, customary International Law and treaties are applied differently. They therefore have been discussed separately:

(a) Customary International Law. In the United Kingdom, all such rules of customary International Law as are either universally recognised or have at any rate received the assent of the United Kingdom are per se part of the law of the land. However, they are enforced only if so far as they are not inconsistent with the Acts of Parliament or prior decisions of the final authority. The practice is normally characterized as the doctrine of incorporation. The principle has been applied in many cases.

In the case of Buvot v. Barbuit, Lord Talbot declared that ‘the law of nations in its full extent was part of the law of England’. This was followed later in Triquet v. Bath where Lord Mansfield upheld the earlier case and specifically referred to Talbot’s statement. However, in R. v. Keyn, popularly known as the Franconia case, Justice Cockburn departed from the above doctrine by stating that customary law is part of the law of the land only in so far as the rules have been adopted and made part of the law of England by legislation, judicial decision, or established usage. The doctrine introduced in the case is known as the doctrine of transformation, i.e., transformation of the customary International Law into municipal law of England by the use of the appropriate constitutional machinery such as an Act of Parliament is necessary before it is applied by the courts. Later on, in West Rand Central Gold Mining Co. v. Lord Alverstone, in 1905 reaffirmed the doctrine of incorporation by stating that whatever had received the common consent of civilized nations, must also have received the assent of Great Britain and as such would be applied by the municipal tribunals. However, he stated that the proposed rule of international law would have to be proved by satisfactory evidence to have been ‘recognised and acted upon by our own country’. Again, in Chung Chi Cheung v. The King,’ Lord Atkin delivered the opinion of the Privy Council stated that:

The Courts acknowledge the existence of a body of rules which nations accept among themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.

In Trendtex Trading Corporation v. Central Bank of Nigeria, Lord Denning was of the opinion that as between these two schools (transformation doctrine and incorporation doctrine), “I now believe that the doctrine of incorporation is correct”. The incorporation theory was clearly reaffirmed by the Court of Appeal in Maclaine Watson v. Department of Trade and Industry.

(b) Treaties.-The British practice regarding the application of treaties is conditional primarily by the constitutional provisions. Certain treaties are binding on the courts only if an enabling Act of Parliament has been passed.

This rule applies to treaties which affect private rights or liability, or which imposes any financial obligations, or which require modification of the common law or statute for their enforcement in the courts.

Treaties which expressly stipulate that they shall be applied subject to the approval of Parliament, shall be given effect only when the Parliament approves them which is given in the form of a statute. Treaties involving the cession of British territory is an example wherein approval of Parliament is necessary. It implies that the words of a subsequent Act of Parliament will prevail over the provisions of a prior treaty in case of inconsistency between the two.

It is clear from the above that where a statute contains provisions which are unambiguously inconsistent with those of an earlier treaty, a British municipal court must apply the statute in preference to the treaty. However, where the statute is ambiguous, a presumption arises that Parliament did not intend to legislate contrary to the Crown’s international obligations under a treaty, and the court may look at the treaty for the purpose of interpreting the ambiguous statutory language, notwithstanding that the statute does not specifically incorporate or refer to the treaty.

Exception

European Convention on Human Rights and Fundamental Freedoms of 1950 and European Communities Treaties are binding upton British Courts. They do not require the enactment of enabling legislation.

(2) Indian Practice :

Indian Constitution under Article 51 provides the general obligation of India to the World by stating: ‘The State shall endeavour to (a) to promote international peace and security; (b) maintain just and honourable relations between nations; (c) foster respect for International Law and treaty obligations in the dealings of organised peoples with one another; and (d) encourage settlement of international disputes by arbitration.

It is to be noted that Article 51 is too general and no conclusion can be drawn from the Article itself as to how far rules of International Law shall be applied by the courts. Article 51 is simply a pledge that India will work for the promotion of international peace and security, enhancement of International Law and treaty obligations and settlement of international disputes by peaceful means.

It may mean that Article 51 treats customary law and treaty law at the same footing. However, the application of customary International Law and treaties have been discussed separately.

(a) Customary International Law.-As far as the application of customary International Law is concerned, it appears that Indian Courts follow the doctrine of incorporation, as adopted in Great Britain. Thus, Indian courts would apply customary rules of International Law, if they are not overridden by clear rules of domestic law. If they are in conflict with the domestic law, courts shall apply domestic law.

In Shri Krishna Sharma v. The State of West Bengal, the Calcutta High Court stated that the Indian Courts would apply rules of internal law which includes (a) the Constitution of India, (b) the Statute enacted by the Parliament of India, and (c) the Statutes enacted by the State Legislatures.

In A.D.M., Jabalpur v. Shukla, Justice H.R. Khanna in his dissenting opinion held likewise by stating that if there is a conflict between municipal law and International Law (customary International Law), the Courts shall give effect to municipal law.

However, in some cases the Supreme Court applied the rule of incorporation, i.e., customary rules of International Law was applied when they were not inconsistent with the domestic law. In Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, the observations of the Supreme Court relate to the binding force of the customary rules of International Law.

The above decision makes it clear that Indian Courts shall apply customary International Law in India to the extent they are not inconsistent with the municipal laws.

(b) Treaties. As to treaties, it is submitted that they shall not be binding upon Indian Courts unless they have been implemented by legislation. Basu says that ‘no treaty which has not been implemented by legislation shall be binding on the municipal courts’. The above view is based on Article 253 of the Constitution which says that Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any country or countries or any decision made at any international conference, association or other body.

In Birma v. State of Rajasthan, the Court held that “Treaties which are part of International Law do not form part of the law of the land unless expressly made so by the legislative authority”.

In Shiv Kumar Sharma & others v. Union of India, the Delhi High Court held: ‘In India, treaties do not have the force of law and consequently obligations arising therefrom will not be enforceable in municipal courts unless backed by legislation’. Instances of other cases wherein the above principle has been followed are: Motilal v. U.P. Government, Maganbhai v. Union of India, Nirmal v. Union of India, and Jolley George Verghese v. Bank of Cochin.’ In these cases it was held that legislative power exclusively belongs to Parliament. They relied on Article 253 of the Constitution which says that …… Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any country or countries or any decision made at any international conference, association or other body’.

Karnataka High Court in Civil Rights Vigilance Committee, Bangalore v. Union of India’ held likewise. In this case the question was as to whether Boycott and Cook, the two cricket players shall be allowed to visit India and to play cricket matches as members of the English Cricket Team against India in view of their links with South Africa which was practising the policy of apartheid. The petitioner contended that the action of the Government of India in permitting these two cricket players to enter into India and to play cricket in India was in breach of its obligations under the Gleneagles Accord and obligations attached to its membership of the United Nations. The Court held that the Government of India’s obligations under the Gleneagles Accord and obligations attached to its membership of the United Nations, cannot be enforced, at the instance of citizens of this country or associations of such citizens, by courts in India, unless such obligations are made part of the law of this country by means of appropriate legislation.

The above view is consonant with the dualistic theory according to which a treaty becomes a part of the law of the land only after its transformation into that law by the legislative process.

However, in a few cases, especially in relation to human rights, international conventions have been taken into account by the courts where it was found that there has not been any inconsistency between international conventions and domestic law. In Vishakha v. State of Rajasthan, the Supreme Court held that the international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote in object of the constitutional guarantee.

This is implicit from Artfele 51(c) and the enabling power of the Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Thus, the courts in India may enforce international treaties and conventions which are not inconsistent with Indian laws.

It has to be realised by them that neither municipal law nor International Law is supreme, but they are concordant with each other. They both have been made to solve the problems of human beings in different areas. If they refuse to accept the rules of International Law, relations between the States would become tense and the high ideals of ‘maintaining international peace and security’ would begin to look like utopian.

Conclusion

So here we discussed about the relation between International law and Municipal Law with the help of different theories and what happens when there is a clash between them.