Relationship of International Law and Municipal Law

3044867827_6e619a0f80_b-e1404844148296

This article was written by Rahul Saraswat, a student of Gujarat National Law University, Gandhinagar.

International law has a very complex and uneasy relationship with the domestic laws of a country. The two systems are usually understood as distinct legal systems of rules and principles.[1] Before understanding the relation between International laws and Municipal Laws, first we need to understand them.

  • International laws

Laws of Nations or International Law is the name for the body of customary and treat rules which are considered legally binding by the states in their intercourse with each other.[2]  We can gather the definition of International law as has been defined in the case of R. v. Keyn[3]; the Chief Justice Coleridge defined International Law as “The Law of Nation is that collection of usages which civilised states have agreed to observe in their dealing with another”. It may be described as ‘the sum of the rules accepted by civilised states as determined by their conduct towards each other subjects.[4]

  • Municipal Laws

The national, domestic, or internal law of a sovereign state defined in opposition to International law is known as Municipal law. It also includes law at national level, state level, and provincial level, and territorial level, regional or local levels. International law treat all this laws equal and makes no difference between ordinary law of state and its constitutional law.

To understand the relationship between International law and Municipal law, we need to understand the views of the jurists on this theme which may be reduced in two fundamental approaches. These are also known as Schools of Law.

  • Monism:

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.  They both operate in the same sphere of influence and are connected with the same subject matter and thus can come into conflict, but if there is conflict then international law will prevails. Monism dictates national law that contradicts international law is null and void, even if it is the constitution. In Kelsen’s view, the ultimate source of the validity of all law derived from a basic rule “Grundnorm” of international law. His theory led to the conclusion that all the rules of international law were supreme over international law that a municipal law inconsistent with international law was automatically null and void and that rules of international law were directly applicable in the domestic sphere of states.[5]  International Law and Municipal Law are two phases of one and the same thing.  The former although directly addressed to the States as corporate bodies is as well applicable to individuals for States are only groups of individuals.

  • Dualism

The dualist doctrine developed in the 19th century. This theory considers International law and Municipal law to be separate legal orders operating and existing independently of one another. Dualists emphasize the difference between these two laws and require translation of international law into the Municipal law. Without the translation, international law does not exist as law; international law has to be national law as well. International law is the law applicable between sovereign states and is dependent on the common will of states for its authority whereas Municipal laws apply within the state regulating the activities of citizens and have source of authority form state itself. But when both these laws will deal with same subject matter there will be conflict, a municipal court following the dualist doctrine would apply municipal law.[6]  Thus this doctrine considers international law as weak law as it is a law among state made out of an agreement.

Indian Approach:

The constitution of India Under articles 51, 73, 245& 246 has given consideration to ‘international laws’ and ‘treaties’, but the clause ‘c’ of Art. 51 specially mention ‘International law’ and ‘treaty obligation’, but art. 51 do not give any clear guidance regarding position of international laws in India as well as the relationship of municipal laws and international law but we can gather the guidance from Prof. C.H. Alexandrowicz who says that expression ‘international law’ in Art. 51 connote ‘Customary International law’ and ‘treaty obligation’ stands for ‘Treaties’[7]. In India International law are part of municipal laws provided that they are not inconsistent with any legislative enactment or the provision of the constitution. Indian court can apply International law if they are not inconsistent with the rule of domestic law.[8] Indian constitution follows the ‘dualistic’ theory with respect to incorporation of international laws in to municipal law. International treaties do not become part of national law in India automatically. They must be incorporated into legal system by an act of parliament. The court first look at the municipal law and if the municipal law is silent on a point then the court will refer to the Customary international for the reference, the same thing has been done by the SC time and again and in the case of Jolly George Varghese and anr. V. The Bank OF Cochin[9], accepted this view.

In Shri Krishna Sharma v The State of the West Bengal[10] the Calcutta HC stated that: If the Indian Statutes are in conflict with any principle of International Law, the Indian Courts will have to obey the laws enacted by the legislature of the country to which they owe their allegiance. In interpreting and applying municipal law, the Courts will try to adopt such a construction as will not bring it into conflict with the rights and obligations deductible from rules of internal law. If such rules or rights and obligations are inconsistent with the positive regulation of municipal law, the courts override the latter. It is futile in such circumstances to seek to reconcile, by strained construction which really irreconcilable.” In another case  A.D.M., Jabalpur v. Shukla[11]Justice H.R. Khanna in his dissenting held likewise by stating that if there is a conflict between municipal laws International Law (customary International Law), and the Courts shall give municipal law. However in some cases SC applied Customary International law also, the case of Gramophone Company of India Ltd. v. Birendra Bahadur Pandey[12], clearly state the observations of the Supreme Court which relates to the binding force of the customary rules of International Law. From the decision of this case it was made clear that the Indian Courts shall apply customary International Law in India to the extent they are not inconsistent with the municipal laws. The Supreme Court in Vellore Citizens Welfare Forum v. Union of India[13] and Others, referring to the “precautionary principle‟ and the “polluter pays principle‟ as part of the environmental law of the country, held as follows: “Even otherwise, once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law.” In a recent case of Vishakha v. state of Rajasthan[14] it was held by jury that if there is not a law regarding any subject matter in India then for the same reference can be taken from Customary International law.

As to treaties it has been stated by Basu in his commentary on Constitution of India that treaties are not implemented by legislation are not binding on municipal courts[15]. The same thing is stated in Article 253 of constitution that empowers parliament to make any laws for implementing any treaty, agreement or convention with any country or countries. The Division Bench of the Rajasthan High Court in Birma v. State[16] stated that treaties which are part of the international law do not form part of the law of the land unless expressly made so by the legislative authority. In the present case the treaty remained a treaty only and no action was taken to incorporate it in to a law. That treaty cannot therefore be regarded as part of the Municipal Law. In Shin Kumar Sharma & others v. Union of India[17], the court stated that “In India, treaties do not have the force of law and consequently obligations arising there from will not be enforceable in municipal courts unless backed by legislation”.

In India the Courts follow the Dualistic approach, the above views are constant with the dualistic theory according to which treaty becomes a part of the law of the land only after it is enacted by the legislature and implemented. 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 inconsistency between them.[18] In fact, the increasing scope of international law has prompted most states to accept something of an intermediate position, where the rules of international law are seen as part of a distinct system, but capable of being applied internally depending on circumstances, while domestic courts are increasingly being obliged to interpret rules of international law.

[1] See Hilary Charlesworth and others, eds., The Fluid State: International Law and National Legal Systems (Sydney, Australia: The Federation Press, 2005).

[2] Brierly’s definition of International Law/ Oppenheim, International Law, edtied by Sir Robert Jennijs and Arthur Watts, Pearson Education, Singapore, Vol. 1 (1905) pp 1-2.

[3] R. v. Keyn, (1876) 2 Ex. D 63

[4] Pitt Cobbett definition of International law.

[5] Tim Hiller, Sourcebook on public international law, Cavendish Publishing Ltd, London, p. 35.

[6] Peter Malanczuk, Akehurst’s Modern Introduction to International Law, Routledge Publishers, New York, 2002, page no. 63

[7] C.H. Alexandrowicz, “ International Law in India”, ICLQ, 1952,p.252.

[8] D.D.Basu, Commentary on the constitution of India” LexisNexis Butterworths Wadhwa, Nagpur 1956  p.404.

[9] AIR 1980 SC 470.

[10] AIR 1954 Calcutta 591

[11] AIR 1976 SC 470

[12] AIR 1984 SC 667

[13] AIR 1996 SC 2715

[14] AIR 1997 SC 3011

[15] Basu,  D.D.,Commentary on the constitution of India, 1956, Vol II,p.404.

[16] AIR 1951 RAJ. 127

[17] AIR (1958) Delhi, p.64.

[18] Supra note 14.

Add a Comment

Your email address will not be published. Required fields are marked *