Relationship between Municipal and International Law | Public International Law - CLAT PG PDF Download

Theories of Relationship between International Law and Municipal Law

The theories regarding the relationship between international law and municipal law can be broadly categorized into two main types: Dualistic Theory and Monist Theory.

Dualism vs. Monism

• Dualism views international law and municipal law as distinct systems with different sources, governing different areas and relationships. According to dualists, international law is considered inferior and weaker than domestic law. If international law becomes part of domestic law, it is only because domestic law has chosen to incorporate it.
• Monism, on the other hand, argues that there is only one system of law, of which international and domestic laws are two aspects. Monists believe that both govern sets of individuals (with states seen as collections of individuals), are binding, and represent manifestations of a single concept of law. In this view, international law is superior and stronger, as it represents the highest rules of the legal system, with domestic jurisdiction being delegated to states. If domestic law conflicts with international law, it is the state's fault, and the state is still obligated to comply with international law.

While the debate between dualism and monism may seem academic on the international level, it has practical implications on the domestic level. The determination of whether international law forms part of domestic law is often decided by the Constitution, statutes, or domestic courts of each state.

• Monists argue that international law always becomes part of domestic law, while dualists contend that it only becomes part if domestic law explicitly or implicitly incorporates it.
• Some states explicitly accept international law as part of their domestic law, leading to debates about the necessity of such acceptance. In cases where international law is incorporated into domestic law without specific legislation, the enforceable parts are known as 'self-executing' provisions.
• Countries like the United States have provisions for self-executing international law, while others, like the United Kingdom, may not accept any international law as self-executing or only accept it in part.

Conflicts between International Law and Domestic Law

• When international law and domestic law coincide, there is no issue. However, conflicts arise when international law imposes obligations not reflected in domestic law or when the obligations of international and domestic law conflict with each other.
• In dualist legal systems, if an international law obligation has not become self-executing or been expressly re-enacted in domestic law, domestic law prevails. For example, in the UK, courts cannot consider provisions of international treaties unless the legislature has expressly incorporated them into domestic law, even though the UK is bound by treaty provisions.
• In other cases, courts must consider both international and domestic law. If there is a conflict, courts follow domestic law rules that determine which law takes precedence. If there are no such rules, it may indicate a monistic legal system where international law prevails.

Application of International Law within Municipal Sphere

Specific Adoption, Specific Incorporation, or Transformation Theory

• According to the Dualist perspective, the rules of International Law cannot be directly applied within the municipal sphere by State Courts.
• For such rules to be applicable, they must undergo a process of specific adoption or specific incorporation into municipal law.
• The Dualist Theory posits that International Law and Municipal Law are two separate and structurally different systems.
• In the case of treaty rules, Dualists argue that there must be a transformation of the treaty into state law.
• This transformation should be substantive, not merely formal, to validate the extension of treaty rules to individuals.
• Theories based on the consensual nature of International Law contrast with the non-consensual nature of state law.
• According to this theory, Treaties are seen as promises, while Municipal statutes are viewed as commands.
• The transformation of International Treaties into the Municipal sphere is deemed both formally and substantively necessary.
• Critics argue that the distinction between promise and command is relevant to form and procedure but not to the true legal nature of these instruments.

Delegation Theory

• The Delegation Theory, proposed by critics of the transformation theory, asserts that the Constitution delegates to each state the authority to determine when the provisions of a treaty or convention come into force and how they are incorporated into State law.
• Supporters of Delegation theory argue that the procedures and methods adopted by the state are a continuation of the process initiated with the conclusion of the treaty or convention.
• They contend that there is no transformation or fresh creation of municipal law rules, but rather a prolongation of a single act of creation.
• State law's constitutional requirements are viewed as part of a unitary mechanism for law creation.
• While the monist/dualist debate continues to influence academic discourse and judicial decisions, it is considered unsatisfactory in many respects.

State Practice on the Domestic Application of International Law

The domestic application of international human rights treaties has been a topic of debate in various countries, particularly those influenced by common law due to their colonial history under the British Empire. Even after gaining independence, common law continues to shape the jurisprudence of these nations. However, there has been a noticeable shift away from the dualist approach in recent years, with most national courts leaning towards the monist perspective on this issue. A brief overview of how different states, excluding India, apply international human rights law domestically will provide a comparative analysis of the incorporation of international human rights treaties into domestic legal systems. Furthermore, this overview will help in understanding prevailing trends and interpretative techniques used to integrate international human rights laws into domestic jurisprudence.

Practice in the United States of America

• In contrast to India, the U.S. Constitution clearly outlines the treaty-making power and the status of international law in the United States.
• Article II, Section 2 of the U.S. Constitution grants the President the authority, with the advice and consent of the Senate, to make treaties, requiring a two-thirds majority of senators present.
• The President is responsible for initiating and conducting treaty negotiations, presenting signed treaties to the Senate for approval.
• A distinction exists in the U.S. between treaties and agreements. Treaties must be submitted to the Senate for approval, while agreements (executive agreements) are made and signed by the President under executive power, typically related to foreign relations and military matters that do not affect citizens' rights and obligations.
• Trade agreements, however, require ratification by both Houses of Congress, but only by a simple majority.

Practice in England

• According to the 18th Century "Blackstonian" Doctrine, known as the incorporation doctrine, customary international law was considered automatically part of common law.

Treaty Rules

• The application of treaty rules in England is primarily governed by constitutional principles that regulate the relationship between the executive (crown) and Parliament.
• The negotiation, signature, and ratification of treaties fall within the prerogative powers of the crown.

Current Practice

• In contemporary England, treaties are submitted to Parliament for ratification. This practice stems from a statement made in 1924 by Mr. Ponson, the Under Secretary of State for Foreign Affairs, regarding the intention to lay every signed treaty before both Houses of Parliament for twenty-one days before ratification and publication.
• The purpose of this practice is to ensure publicity for treaties and to allow for parliamentary discussion if desired.
• This practice does not apply to minor or technical treaties that do not require ratification. It is limited to treaties subject to ratification.
• Thus, the domestic application of international human rights law in England reflects a dualist approach, where international human rights treaties do not become part of English law unless Parliament enacts a law incorporating the treaty provisions.
• In this context, all multilateral treaties, including human rights treaties, are considered non-self-executing.
• This practice is distinct from that in the U.S., where treaties are regarded as the supreme law of the land.
• However, customary international law is recognized as part of the law of the land in both England and the U.S.