Module 3
Relationship between international law and municipal law
Q. Examine the theories as to the relation between international law and
municipal law. [15M, 10M]
Introduction-
Relationship between the rules of international law and municipal law is one of
the most controversial questions of legal theme originally the relationship
between the two laws was a matter of theoretical importance but at present
the question has required practical significance as well.
When there exists a conflict between the rules of international law and
municipal law 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, The answer depends on how far the
constitutional law of the state allows international law to be applied directly by
the courts.
In fact, international law cannot work without the cooperation and support of
the national legal systems. The view of the jurist on the question of relationship
of international law and municipal law are divergent which lead to the
emergence of different theories.
A] Dualist Theory –
According to dualist theory, international law and municipal law of the several
states are two distinct, separate and self-contained legal systems. Dualist view
was developed by a prominent German scholar triepel in 1899. He believed
that the international law helps in governing international relations and
municipal law finds relations between individuals and between the individuals
and the state. The theory was later on followed by Italian jurist Anzilotti.
The above authors are of the view that the 2 systems of law differ from each
other on the following grounds:
i) Regarding sources- While the sources of municipal law are custom
grown up within the boundaries of the state concerned and the
statute enacted by the Sovereign, the sources of international law are
custom grown up among the state and lawmaking treaties concluded
by them.
ii) Regarding Subjects- While municipal law regulates the relations
between the individual and corporate entities and also the relations
between the state and the individuals, international law regulates
primarily the relations between the states.
iii) Regarding substance of Law- While municipal law is a law of
sovereign over individuals, international law is a law not above, but
between Sovereign states. Thus, municipal law addresses itself to the
subjects of the sovereigns, international law to the sovereigns
themselves.
iv) Regarding Principles- Anzilotti is of the view that while municipal law
in a state is obeyed because they are the principles of the 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.
v) Regarding Dynamism of the subject Matter- While the subject matter
of international law has always remained dynamic, the subject matter
of the municipal law is limited.
Anzilotti states that the two systems are so distinct that no conflicts
between them are possible. So, Municipal courts would certainly apply the
international law as and when rules of the international law are considered
part of the law of the land. Unless there is a clear provision of national law
such as a statue or judicial Decision which precludes the use of international
law rule by the national court. Once it is established that an international
law exist and who is relevant to the case in the hand, Under the doctrine of
incorporation then international rule will automatically apply before
national courts. Municipal courts shall also apply rules of international law
when the rules are transformed international law i.e. when they have been
specifically or expressly adopted by the states.
The difference between incorporation and transformation is that
Incorporation implies that rules of international law are part of national law
unless excluded, transformation implies that rules of international law are
part of principle 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. Further, when a case
comes before the International Law or tribunal it applies international law
rather than to municipal law in case of a conflict between them.
Criticism- Dualist theory is subjected to many criticisms
I] Firstly, the view that international law and municipal law differ from each
other implies to international law cannot be a part of municipal law and can
never operate as the law of land unless they are specifically adopted. It is
not correct because there are certain fundamental principles of
international law which are binding upon a state even against its own will.
II] Secondly, it is not correct to say that international law regulates the
relations of state only. At present, it regulates certain activities of individuals
as well if individuals commit certain wrongs they can be given punishment.
It is the principle on which international law rests. These are certain rules
which are legally binding on the state.
B] Monist Theory-
Monist theory words pronounced in 18 century it was put forward by two
Germans scholars Moser and Marten. This theory is based on full-fledged
doctrine. According to this doctrine there exists only one set of legal system
that is domestic legal order. It has been denied by this Feel that
international law is distinct and autonomous body of law. It followed that
there was obviously no need for international rules to be incorporated into
municipal legislation; since they have been made by the state themselves.
The monastic doctrine was later developed in the early 20th century by the
Austrian jurist Kelsen.
According to Monist 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. They both are therefore species of one
genus law. 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 the laws are meant to solve the
problems of human beings in different areas; they both are related to each
other.
So, neither of the laws are 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 this theory rejected the alleged differences between the two
systems which are laid down by the dualists. According to them subjects of
both the systems are ultimately individuals. Monist lay down that
international law is superior even within the municipal sphere.
So, a Question arises as to which of the above theories is correct? It is said
that no alone theory is complete and perfect. Both international law and
municipal law have made to solve the problems of human beings, and
therefore if contradictions arise between the two, they are required to be
harmonized.
However, if contradictory rules in fact exist it does not follow that one of
them must be void. Since judges of all the courts- municipal as well as
international should aim at harmonising the system rather than to treat one
system superior to the other.
Harmonisation of rules is possible mainly in two ways
i) Firstly, it is a duty of judges to eliminate contradiction by their jurist
reasoning
ii) Secondly, enactments in the municipal legal system of the state
should not be made in such a way so as it contradicts to the existing
rules of International.
C] Specific Adoption or Specific Incorporation Theory-
The positivists are of the view that customary international law cannot directly
and ex proprio vigore (By its own strength) be applied within the municipal
sphere by State courts or otherwise. In order to apply customary international
law within the municipal sphere, it is necessary that such law must undergo a
process of specific adoption by, or specific incorporation into municipal law.
Since international law and municipal law constitute two strictly separate and
structurally different systems, the former cannot impinge upon State law unless
the latter, a logically complete system, allows its constitutional machinery to be
used for that purpose.
D] Transformation Theory-
As far as international law consisting of treaties is concerned, there must be a
transformation of the treaty provisions into municipal law. The transformation
of treaty provisions into municipal law is not merely a formal requirement. It is
a substantive requirement. The municipal law may be amended to incorporate
the treaty provisions or the legislature of the member states may enact
enabling statute to give effect to treaty within their municipal spheres. It is only
after the transformation of treaty law into municipal law that the provisions of
the treaty may be extended to individuals in a State and not otherwise.
E] Delegation Theory-
The critics of transformation theory put forward a theory of their own - the
delegation theory. According to delegation theory, there is delegated to each
State constitution by constitutional rules of international law, the right to
determine when the provisions of a treaty are to come into force and manner
in which they are to be embodied in municipal law. The procedure and
methods to be adopted for this purpose by the State are a continuation of the
process begun with the conclusion of the treaty. There is no transformation,
there is no fresh creation of rules or municipal law, but merely a In wind
prolongation of one single act of creation. The constitutional requirements of
state law are thus merely part of a unitary mechanism for the creation of law.