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Relationship between International Law and Municipal Law

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What is International Law? 

We can define international laws in many possible ways such as: –

• OPPENHEIM defines international law as “the body of customary and conventional rules that are considered legally binding by polite states in their relationships with one another, within a society, and which shall be enforced by external power by mutual consent of the community.”

• J.G. Starke described international law as “that body of law constituted for most of the principles and rules of conduct which governments feel compelled to observe, and hence do generally observe in their relations with one another.”

• “The legal system governing the communication between nations; more modern, the Law of International Affairs, embracing not only nations but also such actors as International organizations and individuals,” according to Black’s Law Dictionary.

Thus, International Law is a body of rules and principles which regulate the conduct and relations of the members of the international community

What is Municipal Law?

•Municipal Law is the state domestic or domestic law of a sovereign state defined in opposition to international law.

•Municipal law involves many stages of law, not only state law but also local, territorial, regional, or local law.

•Municipal law is the law specific to a specific city or country and the government bodies within those cities or countries.

Thus, Municipal Law is the acts made by the legislature or the Legislative authority of a state, applicable to that state alone.

Difference between Municipal and International Law?

International Law is largely but not altogether concerned with the relation among states. Whereas Municipal Law controls relations between people within a state and between individuals and the state. International Law, on the other hand, controls relations between the member States of the Family of Nations. Municipal Law controls relations between the individuals under the influence of the respective State and the relations between this State and the respective individuals. Law of Nations is a Law not above, but between the Sovereign States. Whereas Municipal Law is a Law of a Sovereign over individuals exposed to his way.  

Relationship Between International and Municipal Law 

Theories

1. Monism

2. Dualism

3. Specific Adoption Theory

4.Transformation Theory

5.Delegation Theory

Dualism

This idea, known as dualism, emphasizes that the laws of international and local law systems exist independently and cannot be said to affect or govern one another. According to this theory, international and domestic law are two distinct bodies of law that operate independently of one another. Under dualism, international law norms and principles cannot directly impact individual rights and duties; instead, they must be transformed or incorporated into domestic law before they can affect individual rights and obligations. International law and municipal law exist, according to dualist theory, but their functioning is vastly different. International law cannot interfere with municipal laws, according to the dualist perspective, if international law rules are not incorporated into municipal laws. The transformation concept is an important aspect of the dualist approach, which states that if international law is turned into national law, municipal law takes precedence. The adoption doctrine is a broader thesis of the dualist approach, according to which international law cannot impose rights on municipal laws unless the rules are acknowledged as inclusive in domestic laws, resulting in an obligation to observe such international rules.

Monism

The monist stance is an outgrowth of Kantian philosophy, which advocates for a unitary view according to this viewpoint because states’ capacities are derived from the concept of law, the law grants them the authority to exercise such capacities. As a result, the law to which jurisdictional reference must be made is separate from sovereignty and determines its boundaries. When a state crosses the line, its actions are null and void. This argument is reasonable since it results in international law having a considerably broader and more fundamental jurisdiction than municipal law. However, it tends to ignore the dualist’s point, namely, that a municipal court may be instructed to apply municipal law rather than international law, and thus has no jurisdiction (using the term as a descriptive term for the capacity to decide a case in municipal law) to declare the relevant municipal law invalid.  

As a result, describing the jurisdictional excess as “invalid” or even “illegal” (if there is any distinction between the terms) has no intrinsic meaning inside the acting State’s municipal law. To this point, the monist has just one response: that this conflict of tasks was improperly resolved due to a flaw in the organization.

Delegation Theory

This theory says that the rules of international law identified as “Constitutional rules of international/treaties” delegate a right to each state constitution, allowing each state to

 decide or determine for itself how and when the provisions of an international treaty or convention are to come into force, and in what manner they are to be implemented or embodied into the State of Law

COUNTRIES

U. S.

Apart from the requirement to consider the Constitution, the American view on the link between municipal law and customary international law appears to be very similar to British practice. As a general concept, it is, of course correct that the United States has a fundamental national interest in complying with international law,’ the US Supreme Court stated in Boos v. Barry. The Constitution, on the other hand, applied to international law. As in the United State, an early endorsement of the incorporation doctrine was eventually amended. International law is part of our law, according to the Paquet Habana case, and it must be established and administered by courts of appropriate authority as often as problems of right relying on it are duly filed for judgment. The current consensus is that customary international law in the United States is federal law and that the federal courts’ decisions are binding on state courts. The doctrine of precedent and the requirement to act following previously decided cases bind US courts, and they, too, must apply the statute against any norms of customary international law that conflict with it. In the Commission of United States Citizens Living in Nicaragua v. Reagan case, the Court of Appeals reiterated that an act of Congress might be challenged because it breaches customary international law. It has been emphasized that the US legislative and judicial branches have the authority to disregard international law when doing so is authorized by a statute or a “controlling executive act.” This, like the wider relationship between custom and conflicting pre-existing statutes, has sparked a lot of debate. However, it is now widely understood that statutes replace older treaties or international law customary principles.

China

Despite the growing interest in Chinese studies in the United States, little, if any, emphasis has been dedicated to the study of Communist China’s international law perspective. Some may believe that, as a socialist country, Communist China cannot do anything except follow the Soviet understanding of international law or that of socialist countries in general. This viewpoint may contain some truth, but it does not reveal the entire picture. Communist China accepts many of the principles of international law promulgated or applied by the Soviet Union or Soviet jurists but given the growing divergences in viewpoints between the two countries in dealing with many international issues and conducting the international Communist movement, it is reasonable to conclude that Communist China and the Soviet Union have developed differing perspectives on international law. In this regard, Wu T6Feng, a prominent Communist Chinese jurist and President of the China Political Science and Law Association, recently published a study in which he harshly condemned the Soviet understanding of international law.

India

Articles 51, 73, 245& 246 of the Indian Constitution have dealt with “international laws” and “treaties,” but clause “c” of Article 51 specifically mentions “International law” and “treaty obligation,” but art. 51 does not provide any clear guidance regarding the position of international laws in India or the relationship between municipal laws and international law, but Prof. C.H. If international law does not clash with any legislative action, it is incorporated into municipal laws in India. The enactment or provision of the constitution. Indian courts can use international law if it is not in contradiction with domestic law. The Indian constitution’s “dualistic” doctrine allows foreign laws to be incorporated into local law. International treaties are not immediately incorporated into Indian law. To be incorporated into the legal system, an act of parliament must be passed. The court will first look at local legislation, and if the municipal legislation is silent on an issue, the court will turn to Customary International for help; the SC has done this before, and the court did the same thing in the case of Jolly George Varghese and an. V. The Bank OF Cochin.

U. K. 

The United Kingdom’s public policy is that courts should, in general, give regard to recognised international law standards. Various hypotheses have been proposed to explain why international law laws are applicable within the jurisdiction. The doctrine of transformation is one manifestation of the positivist dualist perspective. This is based on the 9 perceptions of two distinct systems of law that operate independently, and maintains that before any rule or principle of international law can have any effect within the domestic jurisdiction, it must be expressly and specifically “transformed” into municipal law using the appropriate constitutional machinery, such as the Constitutional Court as an act of Parliament, Another viewpoint, known as the doctrine of incorporation, says that foreign law instantly becomes part of municipal law without the need for a constitutional ratification mechanism. The most famous proponent of this theory is the eighteenth-century lawyer Blackstone, who wrote in his Commentaries that “the law of nations, wherever any question arises which is properly the subject of its jurisdiction, is here adopted in its full extent by the common law, and it is held to be a part of the law of the land.”

Conclusion

To explore the relationship between domestic and international law, there are primarily two   theories: monistic and dualistic. Monistic theory is based on natural law, which claims that    both domestic and international law are the same law, with no need for division. However, according to the dualistic approach, which is founded on positive law, domestic and international law are distinct entities. Unless the nation-state agrees to do so, it is not required to observe international law. Even though both theories have a position in international law, just a few countries in the world adhere to pure dualism or monism. When it is in their interests, countries follow international law favour and do not follow when it is not. This is what we can see in the international situation.

This article is written by Shrey Hasija  student at Vivekananda Institute of Professional Studies, GGSIPU.

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