Certain theories have been propounded to explain the relationship between International Law and Municipal Law. Following are some of the prominent theories in this connection: (1) Monism; (2) Dualism; (3) Specific adoption theory; (4) Transformation theory; and (5) Delegation theory. These theories have been put forward to explain the relationship between International Law and State Law. Of all these theories the most popular are ‘Monism’ and ‘Dualism’ and they are diametrically opposed to each other.
Main theories:-
- (1) Monism.- The exponents of this theory emphasise the scientific analysis of the internal structure of the law. According to them law is a unified branch of knowledge, no matter whether it applies to persons or other entities. “According to monist belief, international obligation and municipal rules are facets of same phenomenon, the two deriving ultimately from one basic norm and belonging to the unitary order comprised by the conception of law.” “ In their (i.e.monists) view the science of law is a unified field of knowledge, and the decisive point is, therefore whether or not international law is true law. Once it is accepted as hypothesis that international law is a system of rules of truly legal character, it is impossible, according to Kelsen (1881-1973) and other monistic writers to deny that the two systems constitute part of that unity corresponding to unity of legal science. Thus any construction other than monism, and in particular dualism, is bound to amount to a denial of the true legal character of international law. It has already been pointed out that international law is a law in the true sense of the term and keeping this view in mind, monism seems to be reasonable and correct theory. Wright, Kelsen and Duguit, etc. are some of the prominent exponents of monism.
- According to the exponents of Monism International Law and Municipal Law are intimately connected with each other. International Law and Municipal Law are the two branches of unified knowledge of law which are applicable to human community in some or the other way. In view of the monistic writers, in the ultimate analysis of the law we find that man is at the root of all laws. All laws are made for men and men only in the ultimate analysis.
- Criticism-Monism is a very sound theory. It is very difficult to disprove the view of Kelsen that man lies at the root of all laws. But in actual practice states do not follow this theory. They contend that Municipal Law and International Law are two separate systems of law. Further, each state is sovereign and as such is not bound by international law. States follow international law simply because they give their consent to be bound and on account of other reasons.
(2) Dualism- In the view of the dualistic writers, international law and State law are two separate laws. “ The Monist view of law is part of philosophy according to which totality is a single structure. But within the framework of the unitary universe is diversity of phenomenon….Differences are significant and the dualist considers that Municipal Law differs markedly from international precepts.” Monism remained in vogue for a long time. Monism exercise a great influence upon international law, because it had close association with natural law. In the 19th century however, the existence of State-will and complete sovereignty of the State were emphasised. The conception of State will was taken from Hegel, a German scholar and was further developed. Dualism is based on the complete sovereignty of states. The chief exponents of this theory are Triepel and Anzilloti. Triepel has pointed out the following differences between International Law and State Law.
- (a) Regarding subject;- Individual is the subject of State law, whereas State is the subject of International law.
- (b) Regarding origin: Origin of State law is the will of the State whereas origin of the international law is the common will of the States.
Criticism- It is not correct to contend that international law is binding only on states, In the modern period, International law is applicable on states, individuals and certain other non state entities. Besides this, the conception of State-will as the source of State law is incorrect. In fact state will is nothing but the will of the people who compose it. Similarly, it is not correct to say that the origin or source of international law is common will of the States. There are certain fundamental principles of international law which are binding upon the State, even against their will. “ Furthermore, it may be objected to Triepel’s theory that it does not explain the existence of a general international law. Even international customary law becomes particular law for Triepel, its rules apply only to the State which by conclusive acts have declared adherence to the ‘tacit’ agreements upon which they rest-a view that is at variance with reality.”
- Anzilloti has tried to explain the difference between international law and State law in a different way. According to him there is a fundamental difference between the fundamental principles of international law and State law. The fundamental principle of State law is that laws enacted by appropriate legislative authorities are to be obeyed. The fundamental principle of international law is pacta sunt servanda , namely agreement between States are to be respected. On this basis Anzilloti contends that the legal systems of international law and States law are different. It cannot be denied that pacta sunt servanda is an important fundamental principle of international law. But to assert that it is the only basis of international law seems to be far from truth. In fact, it is an important illustration of all the fundamental principles of international law. It fails to explain the binding force of customary rules of International Law in regard to which the States have not given their consent.
STATE PRACTICES REGARDING THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND STATE LAW
- (1) British practice-For the application of international law in Britian, distinction is maintained in regard to the customary rules of international law and the rules laid down by treaties. It will therefore be desirable to discuss them separately.
- (2) British practice in regard to customary rules of international law-In Britain, customary rules of international law are treated as a part of British laws. British courts treat customary rules of international law as a part of their own law subject however to the following conditions. (a) Rules of international law should not be inconsistent with the British statutes; and (b) if the highest court once determines the scope of a customary rule of international law, then all the court in Britain are bound by it.
- Influence of the above practice-Following is the influence of the British practice in regard to the customary rules of international law:-
- (a) Rules of Construction– The British Courts interpret the Parliamentary Statutes in such a way that they should not go against international law. In this connection the presumption is that Parliament never intends to violate international law. This rule is applicable only when the provisions of the Statutes are ambiguous. In case the provisions of the Statutes are clear and unambiguous, they prevail over the rules of international law.
- (b) Rules of evidence– In Britain, the rules of international law need not be proved through evidence.
Following are the exceptions of the British practice in regard to customary rules of international law:
- Acts of State do not come within the purview of the British Courts, irrespective of the violation of international law.
- Prerogative powers of Crown– In some matters the British Courts are bound to obey the prerogative powers of Crown. For example, if the Crown grants recognition to any state, the British courts are bound to accept it. They cannot question the matters coming within prerogative powers of the Crown.
- British Practice as to Treaties– In Britain the practice regarding the rule laid down by treaties is different from the practice in regard to the customary rule of international law. In regard to treaties, the British practice is based on the constitutional principle governing the relationship between Executive or crown and Parliament. In regard to treaties, the matters, relating to negotiations, signatures, etc. are within the prerogative powers of the Crown. In Britain it is necessary that some type of treaties should receive the consent of Parliament. Either the Parliament accords its consent or adopts it in State law through the help of statute.
American practice regarding rules laid down by Treaties- American practice regarding rules laid down by treaties is different from British practice. In case of international treaties, the American practice is not based on the constitutional rules governing the relationship of the executive and Congress. In America, everything depends on the provisions of the constitution. Article VI of the American Constitution provides that the constitution of the United States, all laws made in pursuance thereof and the international treaties entered into under the authority of the United States shall be the supreme law of the land. Thus international treaties have been placed in the same category as State law in America. It may, however be noted that in America the practice is that if there is a conflict between American Constitution and an International Treaty, the former (i.e. the Constitution )will prevail.
Indian Practice: Before the adoption of the Constitution of Indian Constitution the Indian practice in respect of relation of international law to internal law was similar to the British practice. After the adoption of the Constitution of India everything depended upon the provisions of the Constitution. In order to know the position of international Law in the post constitution period, it is necessary to examine the relevant provisions of the Constitution of India. The most relevant provision is contained in Article 51 which runs as follows:
“ The State shall endeavour to-(a) promote international peace and security;
(b) maintain just and honourable relations between nations; (c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another; (d) encourage settlement of international disputes by arbitration.
For the purposes of the present discussion, the most important provision is contained in Article 51 (c) noted above. It is however, significant to note that this Article specifically mentions “ International law” and treaty obligations.” It seems somewhat paradoxical that separate mention should be made of ‘treaty obligations’ as they undoubtedly constitute integral part of International Law. No explanation is to be found in the constituent assembly debates either as to the intent of Article 51 or the meaning and scope of the term ‘international law’ and treaty obligations. Prof.C.H.Alexandrowicz says that the expression “ international law” in this paragraph connotes customary international law and that ‘treaty obligations’ stand for treaties. This interpretation would seem to be the most logical in the context of the article as well as the attitude of the Indian courts to questions of International law.
- Article 253: Reference may also be made here to Article 253 of the Constitution which provides: ‘Notwithstanding in the foregoing provisions of this chapter i.e. Chapter XI of Part XI, Parliament has power to make any law for whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at an international conference, association or other body.”
CASE LAWS:
- Gramophone Company of India Ltd. v. Birendera Bahadur Pandey, Chinnapa Reddy. J.of the Supreme court observed that if in respect of any principle of international law the Parliament says ‘no’, the national court cannot say ‘yes’. National court shall approve international law only when it does not conflict with national law. In case however the conflict is inevitable the national law shall prevail.
- Present legal position: But the position will be different when there is no conflict between International Conventions and the domestic law. As pointed out by the supreme court in Vishaka v State of Rajasthan, in the absence of domestic law occupying the field to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality and right to work with human dignity in Articles 14, 15, 19(1)
(g) and 21 of the Constitution and the safeguards of sexual harassment implicit therein. Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge meaning and content thereof, to promote the object of constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing International Conventions and norms by virtue of Article 253 read with Entry 14 of the Union list in the Seventh Schedule of the Constitution.
3. In Vellore Citizens Welfare Forum v. Union of India, the Supreme Court held that precautionary principle and polluter pays principle acquired the character of international custom and accordingly , constitute part of law of the land in India as there is no conflict between these principles and law of the land in India. Thus the Supreme Court treats international custom as part of Indian law in case there is no conflict between international custom and Indian law.
4. In Jolly George Varghese v. Bank of Cochin, the main issue before the Supreme Court was whether judgment debtor could be arrested and detained in civil prison in execution of money decree. For the purpose, Supreme Court had to interpret Section 51 CPC relating to the powers of the courts to enforce the execution of decrees. Krishna Iyer J who delivered the judgment, referred to Article II of the International Covenant on Civil and Political Rights. The Article reads, “no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation”. While interpreting Section 51 CPC, Krishan Iyer J invoked Article II of the International Covenant on Civil and Political Rights. It was held that civil imprisonment of and honest and bonafide judgment debtor in execution of money decree is violative of Article II of the ICCPR and Article 21 of the Constitution
