Relationship between International Law and Municipal Law
Authored by Anshu Prasad
Keywords: international law and municipal law
The relationship of International law with the domestic laws of a country is very complex and uneasy. These two systems are usually understood as a distinct legal system of rules and principles. The article talks about the theories that explain the relationship between international law and municipal law. Moreover, it even talks about the Indian approach dealing with international law in relation to the provisions of the constitution of India.
In order to understand the relationship between International Law and Municipal Law, it is very important to know the link between the two laws. International Law is a set of rules and actions related to national behavior. In other words, International Law is a set of rules that apply when the States interact. Whereas, Municipal law is also even known as the National Law of the country. The relationship of International law with the domestic laws of a country is very complex and uneasy. The two systems are generally understood as distinct legal systems of rules and principles.
The Black’s Law Dictionary defines “International Law” as the legal system that governs the relationship between the nations; more modernly the law of international relations, embracing not only nations but also such participants as international organizations and individuals (such as those who invoke their human rights or commit war crimes).
Chief Justice Coleridge has defined International Law in the case of R. v. Keyn; as “The Law of Nation is that collection of usages which civilized states have agreed to observe in their dealing with another”.
The Black’s Law Dictionary defines “Municipal Law” as the ordinances and other laws that are applicable within a city, town, or within the other local government entity, and the International Law of a country, as opposed to International Law. Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law not only includes law at the national level but also the law at the state, provincial, territorial, regional or local levels.
‘Monistic’ means the unity of the legal systems. Monism Considers International law and Municipal law to be a part of the same body of Knowledge i.e. Law: Monists assume that the internal and international legal system forms a unity that serves the needs of the human community in one way or the other. Since all laws are part of the same legal order, international law is automatically incorporated into the domestic legal order. Some monist theorists consider that international law prevails over domestic law when they are in conflict; others, that the conflicting domestic law has some operation within the domestic legal system.
The theory of Dualism considers the International law and the Municipal law to be separate legal orders that operate and exist independently of one another. Dualists highlight the difference between these two laws and require interpretation of international law into the Municipal law. Under dualism, rules and principles of international law can’t work directly in domestic law and must be changed or incorporated into domestic law before they can impact individual rights and obligations. The dualists even maintain that as international law cannot address itself to individuals, but only to the States, the States are free to regulate their internal affairs as they may see fit, and that international law exercises little or no control over municipal law.
Articles 51, 73, 245& 246 of the constitution of India has considered ‘international laws’ and ‘treaties’, but the clause ‘c’ under Art. 51 it specially mentions ‘International law’ and ‘treaty obligation’, but art. 51 has not given any clear guidance regarding the position of the international laws in India as well as the relationship b/w municipal laws and international law but we can gather the guidance from Prof. C.H. Alexandrowicz who has said that the expression ‘international law’ in Art. 51 implies ‘Customary International law’ and ‘treaty obligation’ stands for ‘Treaties’. In India, International law is a part of the municipal laws provided that they are not inconsistent with any of the legislative enactment or the provision of the constitution.
The Indian court can apply International law when they are found not to be inconsistent with the rule of domestic law. The Indian constitution follows the ‘dualistic’ theory as for the integration of international laws into municipal law. The International treaties do not automatically become a part of the national law in India. They must be incorporated into the legal framework by an act of parliament. The court first looks at the municipal law and if that municipal law is silent over a point then at that instance the court will refer to the Customary international for their reference, the same thing has been done by the Supreme Court each time and this view was accepted in the case of Jolly George Varghese and anr. v. The Bank OF Cochin.
Supreme Court in many of the cases like Vishakha v. State of Rajasthan, Randhir v. Union of India, Unnikrishnan v. the State of Karnataka, has held that the domestic laws of India, including the constitution, are not to be read as derogatory to that of the International law. An effort must be made to read the domestic law as being in harmony with the international law in case of any ambiguity. At the same time, the constitution is still the supreme law of the land and in case of any direct conflict, the constitution will prevail.
The above examination of the Constitutional provisions amply explains the status of international law in the domestic field.
The Indian Courts follow the Dualistic approach, the above view is consistent with the dualistic theory according to which treaty becomes a part of the law of the land only after it has been enacted by the legislature and executed. 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 irregularity between them. The expanding scope of international law has prompted most states to acknowledge something of an intermediate position, where the rules of international law are viewed as part of a distinct system but are capable of being applied internally depending upon the circumstances, while the local courts are increasingly being obliged to interpret rules of international law.
There are mainly two theories- monistic and dualistic which are used to study the relationship between internal and international law. It is accepted that International Law is higher than Municipal law since the Monist theorists believe that International Law can solve any problems which have emerged within any State. Though both theories have their place in international law, few countries in this world follow pure dualism or monism.
1. R. v. Keyn, (1876) 2 Ex. D
2. C.H. Alexandrowicz, “ International Law in India”, ICLQ, 1952,p.252.
3. D.D.Basu, Commentary on the constitution of India” LexisNexis Butterworths Wadhwa, Nagpur 1956 p.404
4. AIR 1980 SC 470.
5. Air 1997 Sc 3011
6. 1982 AIR 879
7. Supra note 5.