RELATION BETWEEN MUNICIPAL LAW AND INTERNATIONAL LAW.pptx

These slides answer the question what is the relation between Municipal law and International law? and also various theories which distinguishes Municipal law with International law.

1. RELATION BETWEEN MUNICIPAL LAW AND INTERNATIONAL LAW [ Explain the theories relating to relationship between International Law and Municipal Law?] International Law primarily regulates the relations between States and other international institutions . And in certain cases, it reaches to individuals (who are governed by particular States) through various conventions. In some situations the question arises before the court of law , that which law has to be applied. The problem of relationship between IL and ML is one of the most controversial questions of legal theory. ( court faces a difficulty of arriving at a decision ) ( application of law is the primary question ) Originally, the relationship between the two laws was a matter of theoretical importance, i.e., whether International law and Municipal law are parts of a universal legal order or they form two distinct systems of law. [ Whether they are same or not?] It is must the Municipal law should recognise the IL rules. IL cannot work without the co-operation and support of the national legal systems. The different views of jurists on the question of relationship of IL and ML are divergent which have led to the emergence of different theories.

2. [I] Monism / Monistic Theory : Monistic theory was pronounced in the 18 th C. It was forwarded by two German scholars Moser and Martens . 19 th C – Concept was elaborated 20 th C – Kelsen (Australian Jurist) developed this theory. Contentions : Only one set of legal system exists – i.e., the domestic legal order. (Law is seen as a single entity) It has been denied that IL is distinct and autonomous body of law. There was no need for international rules (since they have been made by the States themselves). The theorists emphasised on scientific analysis of the internal structure of law. In the ultimate analysis of law, they find that Man is at the root of all laws. All laws are made for men and men only is the ultimate analysis. According to them law is a UNIFIED BRANCH OF KNOWLEDGE, no matter whether it applies on persons or other entities. Accordingly, International Obligations and Municipal Rules are facets of same phenomenon. (i.e., comprised by the conception of law) IL and ML are intimately connected with each other. The main exponents were Wright, Kelsen , Duguit , Lauterpacht , Fitzmaurice, and Starke Criticism : In actual practice states do not follow this theory. And each State is sovereign and as such is not bound by IL. And States follow IL simply because they give consent to be bound.

3. [II] Dualism / Dualistic Theory : IL and ML are two distinct, separate and self-contained legal systems . The exponents are Triple and Anzilotti [developed the theory in 1899] According to this theory – IL deals with International Relations. - ML deals with the relationship between Individual and State. According to Starke – the theory represents two entirely distinct legal systems. IL is having an intrinsically different character from that of State Law. The theory of Dualism came into existence primarily for two reasons : the positivist philosophy which emphasised on the will of State as the sole criterion for the creation of rules of IL. the emergence of modern State legislatures with complete internal legal sovereignty. IL consists of customary and treaty rules, ML consists of legislative enactments and judicial legislations.

4. The authors are of the view that the two systems of law differ from each other on the following grounds: Grounds International Law Municipal Law Sources Custom grown up among States. Law-making treaties Common will of States Customs developed within the territory of the State. Statutes enacted by law-giving / sovereign authority. State will Operation Relations of States Relations of individuals within the sway of the State Substance Operates between the States and is not above them Weak law Not a part of ML Law is sovereign and operates over individuals. Sovereign law Subjects States (relation between States) Individuals, corporate entities (relation between State and individuals) Principles IL is obeyed, because of the principle of Pacta Sunt Servanda States are morally bound to observe ML is obeyed, because they are principles of State legislature There is a legal sovereignty. Subject Matter IL is dynamic ML is limited

5. Application of International Law by Municipal Courts The IL can be applied by the Municipal courts in following circumstances: When International Law rules considered to be part of the land. The automatic adoption theory is said to operate unless there is some clear provisions of national law. Depends on the relevancy of the case, the IL automatically will be applied based on the doctrine of incorporation. Municipal courts shall also apply rules of IL when latter are transformed in the national law. [ according to dualists, Municipal courts shall apply municipal law in case of a conflict between IL and ML. Thus ML shall have primacy over IL according to this view .]

6. Out of the two theories which theory is correct ? It may be said that no theory alone is complete and perfect . The practice of States shows that sometimes there has been the primacy of IL over ML, especially when the case is being considered by the international courts and tribunals. For instance, the PCIJ in Greco-Bulgarian Communities Case [(1930) Series B.No . 17], stated that it is generally accepted principle of IL that is relations between powers who are contracting parties to a treaty, the provisions of the ML cannot prevail over the treaty. In number of occasions there has been the primacy of ML over IL, especially when the matter is being considered by the municipal court and the municipal law conflicts with the rules of IL. Both the system should not be contradictory to each other , judges should aim at harmonising the systems rather than to treat one system superior than to other. Neither, ML not IL has supremacy to each other. [judges follow doctrine of structural harmonization ]

7. Other theories Besides the theories of monism and dualism on the relationship between IL and ML and on the question whether IL may be applied by its own force within the States, two more theories have been propounded . Specific Adoption theory : According to positivists, IL cannot be directly enforced in the filed of State Law. In order to enforce it in the field of ML, it is necessary to make its specific adoption. (ML should specifically adopt law) ML should permit or adopt the IL, then only it can be applied – eg. , Vienna Convention of Diplomatic Relations Act 1972 [for an instance while considering the International convents on HRs, the SC of India observed in Jolly George V/S the Bank of Cochin [AIR 1980 SC 470] ‘ the positive commitment of the State Parties ignites legislative action at home but does not automatically make the convent enforceable part of the corpus juris of India. ’] [ eg. , the Anti-Apartheid (UN Convention) Act 1981, The Anti-Hijacking Act 1982, the International Monetary Fund and Bank (Amendment) Act 1982] Criticism : this view is not correct in respect of the whole of IL, because there are many principles of IL (especially customary rules) which are applied in the field of municipal law without specific adoption.

8. (2) Transformation theory : To apply IL into ML, the rules of IL have to undergo transformation , without transformation they cannot be applied in the filed of municipal law. Criticism : it is not necessary for all treaties to undergo the process of transformation for their application. (3) Delegation Theory : The rules of international law are applied in the field of State law in accordingly with the procedure and system prevailing in each State in according with its constitution. Criticism : simply a reaction against dualism theory