Relationship between International Law and Municipal Law | Law Optional Notes for UPSC PDF Download

Introduction

Understanding the relationship between International law and a State's Municipal law is of utmost importance in the field of International law. This article will focus on the theoretical aspect of how International law interacts with Municipal law. However, it's important to note that there are two governing principles that address the Municipal application of treaties:

• Article 27 of the Vienna Convention on the Law of Treaties: This article prohibits States from using their Municipal law as a justification for not fulfilling their treaty obligations.
• Article 8 of the Universal Declaration of Human Rights and Fundamental Freedoms: This article grants individuals the right to an effective remedy through competent tribunals for violations of fundamental rights provided by the constitution or other laws.

The theoretical aspect of this topic holds great significance, as debates regarding the boundaries between International law and a State's Municipal law are common among International law practitioners. Beyond the theoretical aspect, there is a practical issue in a State's Municipal courts, which revolves around the extent to which these courts apply the rules and principles of International law within their jurisdiction. This issue arises when International law rules and principles either conflict with Municipal law or do not conflict with it.

Theories on the Relationship Between International Law and Municipal Law

There are two primary theories regarding the relationship between International law and Municipal law, known as Monism and dualism. According to Monism, International law and a state's Municipal law are two separate but complementary aspects of a single legal system. In contrast, dualism posits that they are entirely distinct and separate legal systems in their own right. Since International law involves a multitude of legal systems from different States, the dualist theory is sometimes referred to as the pluralistic theory.
To understand the relationship between International law and Municipal law, it is essential to grasp the nature of these two legal systems. International law consists of rules and regulations governing the behavior of States. In simpler terms, it comprises a set of principles that States can invoke or apply when interacting with other States or international organizations. It is often referred to as "the law of nations." On the other hand, Municipal law pertains to the internal legal framework of a country.

Monistic Theory

• In the Monistic theory, International law functions exclusively at the international level, while Municipal law operates solely within its local jurisdiction. However, proponents of the natural law perspective argue that Municipal and International law together constitute a single legal system, a viewpoint known as Monism.
• To gain a better grasp of this concept, it's important to understand what natural law entails. Natural law exists independently of positive law, deriving from nature itself. As the name implies, it is determined by nature and is characterized by its objectivity and universality. Natural law has been historically used to analyze human nature and derive moral principles from it.
• The argument put forth by Monists is relatively straightforward: they contend that Municipal law and International law, when considered together, form a unified system. Modern scholars who support the monistic approach often base their views on a scientific analysis of the legal structure of Municipal systems.
• In a true monistic country, there is no need for the translation of International law into Municipal law. Once a state gives its consent to a treaty, it automatically becomes a part of its domestic legal framework. This act of consenting to an International treaty or obligation immediately incorporates international principles into the state's Municipal law, including customary International law.
• International law can be applied by a Municipal Court and can be invoked by citizens, provided that the international law has been incorporated into the state's Municipal law. If a municipal law contradicts International law, a municipal court can declare it unconstitutional.
• In a true monist state, if a national law conflicts with International law, it becomes null and void, regardless of whether it has constitutional status. For example, if a state ratifies the Convention on the Rights of Persons with Disabilities but has some national laws that contradict the rights conferred by the treaty, a citizen of that country who is being denied their treaty rights can request national courts to apply the treaty.
• In a Monist State, International law is automatically accepted upon ratification by the state, and any conflicting aspects of Municipal law are automatically superseded.

Kelsen's Grundnorm Theory

• According to Kelsen, both International and Municipal law are essentially different expressions of a single legal system. He asserts the supremacy of International law based on his concept of the "basic norm," which posits that states should behave in accordance with their customary practices.
• Kelsen contends that International law holds a superior position because it represents a legal order above Municipal laws. This hierarchy arises because International law derives from the state's external conduct, whereas Municipal law derives from the state's internal affairs. When one recognizes that International law consists of rules with a legal character, it becomes impossible, according to Kelsen, to deny that both systems form a unified legal framework.
• Kelsen's theory of International law and Monism does not allow for any intermediate position. He views natural law and International law as a unified and coherent system, with International law positioned at the apex, as per his grundnorm hypothesis.

Dualist Theory

• In contrast to Monists, dualists emphasize the distinction between International law and Municipal law, advocating for the adoption of International treaties into a State's Municipal law. According to dualists, International law does not exist as a law unless it is incorporated into a State's Municipal legal framework.
• Dualists hold this view because they see International law and Municipal law as two separate dimensions of the legal system. They consider International law and Municipal law as distinct and autonomous legal systems in their own right.
• In a dualist State, it is crucial for International law to be transposed into its Municipal law to have legal effect. Additionally, the State must repeal any conflicting laws that contradict the newly adopted International law.
• If a dualist State ratifies a treaty or convention but fails to enact laws explicitly incorporating the treaty into its domestic legal system, this omission constitutes a violation of International law. In such a case, neither the citizens of that country can invoke International laws nor can the courts base their decisions on the principles of the treaty.
• The United Kingdom is an example of a country where the dualist approach prevails. In the UK, International law becomes part of national law only when it is explicitly translated into Municipal law.

Hersch Lauterpacht's Views on Dualism

• Judge Lauterpacht, an advocate of natural law, believed that International law adheres to the principles of natural law. He considered International law to be superior to Municipal law because it guarantees the rights of individuals, regardless of their state of nationality.
  According to Lauterpacht, the hierarchy of legal orders is as follows:
  • Natural law
  • International law
  • Municipal law
• In Lauterpacht's perspective, whether it is International law or Municipal law, the individual is the ultimate focus of all legal considerations. He addressed fundamental questions in the philosophy of international law regarding the concept and origin of international law.
• Lauterpacht criticized Heinrich Triepel's doctrine of international legal obligation while agreeing with Kelsen that the binding force of law cannot be derived from the individual or the collective will of states.
• For Lauterpacht, International law is intended for states and not for governments. He viewed the international community as a community of individuals whose will is expressed through the actions of states.

Heinrich Triepel on Dualism

Triepel regarded the two systems of State law and International law as entirely separate in nature. He believed that International and Municipal law exist as distinct and separate legal frameworks.
Triepel made the following arguments regarding the relationship between International law and state law:

• He contended that International law and Municipal law differ in the specific social relations they govern; Municipal law deals with individuals, while International law regulates relations between States.
• He argued that their legal origins are different; Municipal law originates from the will of the State itself, while International law originates from the collective will of States.
• There are differences in subjects, sources, and content between the two legal systems. Moreover, the transformation of International law into Municipal law is often required to make International law binding on Municipal authorities.

Triepel acknowledged that the fundamental will of States forms the basis of the legitimacy of International law. He also emphasized the importance of agreements between States, including treaties and customary practices, as a key source of International law.

The Issue of "Lex Posterior" in Dualist Systems

• In a dualist country, the process of translating International law into Municipal law and eliminating existing Municipal laws that contradict International law can create a problem when new Municipal laws are enacted after translation.
• In a monist country, once International law is accepted, any conflicting national law automatically becomes null and void, and the International rule prevails.
• However, in a dualist system, a principle known as "lex posterior derogat legi priori" applies, which means that a later law supersedes an earlier one. This means that in a dualist state, new national laws can potentially override previously translated International law. This situation can lead to the unintentional or intentional violation of international law in a dualist system, as it requires continuous scrutiny of all subsequent national laws for compatibility with earlier international law.

Key Differences Between Monism and Dualism

Monism

• Advocates of natural law believe that Municipal law and International Law form a single legal system.
• Supported by natural law proponents.
• In a monistic system, there is no need to translate International law into Municipal law for it to take effect.
• If a national law contradicts International Law in a monistic state, it becomes null and void.
• Non-incorporation of a treaty or convention into national law does not violate International Law in a monistic state.
• International Law automatically becomes part of Municipal law in a monistic state, and conflicting parts are automatically overridden.
• Supported by legal scholars like Kelsen.
• Example of a country following Monism: Germany.

Dualism

• Municipal law and International Law are seen as two distinct and separate legal systems.
• Supported by proponents of positive law.
• In a dualistic country, there is a need to translate International law into Municipal law for it to have legal effect.
• National laws that contradict International law do not become null and void in a dualistic state unless they are already translated into Municipal law.
• Non-incorporation of a treaty or convention into national law violates International Law in a dualistic state.
• International Law does not automatically become part of Municipal law in a dualistic state.
• Conflicting parts of Municipal law must be amended by the state, as they are not automatically overridden in a dualistic country.
• The existence of International law depends on its translation into Municipal law in a dualistic system.
• Supported by legal scholars like Hersch Lauterpacht and Triepel.
• Example of a country following Dualism: United Kingdom.

Methods of Treaty Implementation

There are several principal methods by which states implement treaties, including Adoption, Incorporation, and Transformation.

Adoption

• According to the monist theory, when International law is adopted as Municipal law, the treaty becomes automatically enforceable in Municipal law.
• However, some states require a legislative "translation" of treaties to make them enforceable in Municipal law. Examples of such states include France, Spain, Belgium, the Netherlands, and the USA.
• Other countries like Germany and Italy require an order of execution before ratification, which is known as quasi-automatic incorporation. This authorization commits the government to the treaty's obligations and incorporates it into Municipal law.

Incorporation and Transformation

• This method is typically practiced by dualist states.
• Incorporation involves enacting and implementing legislation, and international treaties hold a higher status than Municipal law (though not above the Constitution).
• The key difference between an incorporated treaty and an adopted treaty lies in the form it takes in Municipal law. Adoption depends heavily on the stance of municipal courts.
• Incorporation and transformation, leading to the enactment of legislation, are not without barriers, as it is at the discretion of the court whether to apply treaty principles or not.

Judicial Discourse on the Relationship Between International Law and Municipal Law

State of West Bengal v Kesoram Industries Ltd. & others 

In this case, the Constitutional Bench of Supreme Court held that the Doctrine of Dualism is applicable in India and not the doctrine of Monism however if the municipal law isn’t limiting the extent of the statute, then, even if India is not a signatory to the treaty, the Supreme Court can Interpreted the Statute. 

Civil Rights Vigilance Committee S.L.R.C. College of Law Bangalore v. Union of India and others 

The High Court of Karnataka while deciding this case, defined the relationship between International Law and the Municipal Law held that, as the increasing relevance of International law on the global and municipal scenario, several unique and novel queries are starting to be raised regarding the relationship between the two. However the Hon’ble High Court held that Municipal Law & International Law are established on different sources can make different systems go simply incompatible.

Conclusion

Monism and dualism are often seen as opposing theories of the relationship between International law and Municipal law. However, many modern scholars find that these theories have limited explanatory power in capturing how International law functions within States. Nevertheless, Monism and dualism remain useful as analytical tools, serving as starting points for examining the interaction between International and Municipal law. Recent decisions in Municipal courts have prompted some scholars to consider Monism and dualism as potential approaches for understanding Municipal legal reasoning regarding International law.