“NAVIGATING THE INTERPLAY: INTERNATIONAL AND MUNICIPAL LEGAL SYSTEM”
Author: SHREE CHITHRA SHAJEEV NAIR,
A Student at D Y PATIL DEEMED TO BE UNIVERSITY, SCHOOL OF LAW
ABSTRACT :
The relationship between national and international legal systems is a dynamic and essential aspect of contemporary legal frameworks. This paper explores the interaction between these systems, considering the perspectives of monist theorists who argue for the supremacy of International Law and the adoption of Municipal Law within it. Contrary to traditional notions, International Law is no longer solely confined to regulating relations between nations but has evolved to encompass individuals and other entities transcending state boundaries. According to proponents of monism, International Law holds precedence over Municipal Law, with compliance contingent upon the consent of nation-states. However, in practice, few countries strictly adhere to pure dualism or monism, often selectively following international law based on their interests. The central tenet of these doctrines is to harmonize national and international legal systems, eradicating distinctions between foreign and domestic laws and fostering their interdependence for more efficient judicial processes. This paper sheds light on the evolving dynamics between national and international legal structures and their implications for contemporary legal practice.
1. INTRODUCTION :
A thorough comprehension of the intricate interplay between international law and municipal law stands as a cornerstone in navigating the multifaceted legal landscapes within sovereign states. This article embarks on an exploration of the theoretical dimensions underpinning this relationship, focusing specifically on two cardinal principles articulated within prominent international instruments. Firstly, Article 27 of the Vienna Convention on the Law of Treaties expressly prohibits states from invoking their municipal law as grounds for failing to fulfill treaty obligations, thereby emphasizing the primacy of international commitments over domestic legislation. Secondly, Article 8 of the Universal Declaration of Human Rights and Fundamental Freedoms underscores the entitlement of individuals to pursue effective remedies before competent tribunals for infringements upon their fundamental rights, whether enshrined in national constitutions or other legal instruments.
The theoretical elucidation of this subject matter bears profound significance, as ongoing debates among international law practitioners continue to grapple with delineating the boundaries between international norms and domestic legal frameworks. Furthermore, practical challenges emerge within municipal courts regarding the extent to which international legal principles are upheld within national jurisdictions, particularly in instances where they clash with domestic statutes. Through such endeavors, legal practitioners and scholars alike aim to nurture a more harmonious and equitable legal landscape, wherein the principles of international law are duly respected and upheld within the diverse tapestry of municipal legal systems across the globe.
2. THEORIES :
2.1 MONISTIC THEORY:
Developed by German scholars such as Moser, Hegel, Bergbohm, Zorn, and Wenzel in the late 18th century, and further expounded upon in the 19th century by Wright, Kelsen, and Duguit. Monist theory posits that international law and municipal law constitute facets of one legal system and are not inherently distinct from each other. Both international and municipal laws are believed to originate from the same source, branch, and are facets of the same legal phenomenon, forming a unitary order within the conception of law. Scholars argue that both international and municipal laws, in different ways, regulate the conduct of individuals within society.
2.1.1 DELEGATION THEORY :
Monist theory aligns with the delegation theory, which asserts that every state constitution inherently delegates authority on how international law applies within its jurisdiction. According to this perspective, international law applies to municipal law without the need for specific delegation, thus giving rise to a single legal system. Delegation theory grants primacy to international law over municipal law, as it is applied immediately without undergoing transformation.
2.1.2 KELSEN’S GRUNDNORM THEORY :
Kelsen, an Austrian jurist, contends that both international and municipal laws are manifestations of a single unit of law. He argues that international law holds supremacy due to its representation of a higher authority derived from state practices. Kelsen suggests that denying the existence of a single legal system becomes impossible when international law is recognized as possessing legal character.
2.1.3 CRITICISM :
While monism is a robust theoretical framework, its practical implementation faces challenges. States, being sovereign entities, are not inherently bound by international law but only adhere to it through consent or other considerations. Critics highlight that the sovereignty of states often conflicts with the idea of immediate application of international law within municipal legal systems, complicating the realization of monist principles.
2.2 DUALSIT THEORY :
Dualists emphasize the distinction between International law and Municipal law, advocating for the explicit adoption of international treaties within a state’s domestic legal framework. According to dualists, for International law to hold validity within a state, it must be formally incorporated into the state’s Municipal law. Failure to do so renders International law ineffective within the domestic legal system. Dualists assert that International law and Municipal law are independent and distinct legal systems, and treating them as a unified entity would be unreasonable. In a dualist state, it is imperative to translate international treaties into domestic law to give them legal effect. Additionally, conflicting domestic laws must be repealed or amended to align with the newly adopted international norms. If a dualist state ratifies a treaty without incorporating it into domestic law, the failure to do so violates International law. In such cases, neither citizens nor courts can invoke the principles of the treaty in domestic legal proceedings. The United Kingdom follows a dualist approach, where International law only becomes national law upon translation into domestic legislation.
2.2.1 PERSPECTIVES OF HERSCH LAUTERPACHT :
Lauterpacht, influenced by natural law principles, asserts that International law holds superiority over Municipal law. He contends that International law guarantees rights to individuals regardless of their nationality. Lauterpacht’s hierarchy of legal orders places natural law at the apex, followed by International law, and then Municipal law. He emphasizes the primacy of individual rights in both International and Municipal legal systems. Lauterpacht critiques Heinrich Triepel’s doctrine on international legal obligations, agreeing with Kelsen that the binding force of law cannot solely derive from the collective will of states. Lauterpacht views the international community as a community of individuals, with state governments serving as mere conduits for expressing the collective will of individuals.
2.2.2 TRIEPEL’S VIEW ON DUALISM :
Triepel argues that International law and Municipal law exist as separate and distinct legal systems, governing different social relations and originating from different sources. While Municipal law originates from the will of the state, International law stems from the collective will of states. According to Triepel, International law must undergo a transformation into Municipal law to be binding on domestic authorities. This transformation ensures alignment between international norms and domestic legal requirements. Triepel underscores the significance of the common will of states in shaping International law, highlighting the role of agreements, treaties, and customary practices in its development.
2.2.3 TRANSFORMATION OR SPECIFIC ADOPTION THEORY :
Dualists assert that international law cannot directly influence municipal law. Instead, the rules of international law must be transformed into municipal law to be applicable within domestic legal systems. This theory emphasizes that international rules do not automatically become part of municipal law; rather, they must be explicitly adopted by municipal courts or legislative bodies. This approach distinguishes international treaties, which are promissory in nature, from municipal laws, which hold commanding authority. For instance, India adopted the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights under its Protection of Human Rights Act, 1993.
3. METHODS OF IMPLEMENTING TREATIES :
3.1 ADOPTION :
Monist theory posits that when international law is adopted as municipal law, treaties become automatically enforceable within the domestic legal system. However, certain states require a legislative “translation” of treaties to render them enforceable. For instance, countries like France, Spain, Belgium, the Netherlands, and the USA mandate legislative translation. Meanwhile, countries such as Germany and Italy necessitate pre-legislative consent or an order of execution before ratification, a process termed quasi-automatic incorporation. This grants the government authority to commit to treaty obligations and incorporate them into the domestic legal framework.
3.2 INCORPORATION AND TRANSFORMATION :
Dualist states typically adhere to the theory of incorporation, involving the enactment and implementation of legislation to integrate international treaties into domestic law. These treaties hold a higher status than municipal laws but are subordinate to constitutional provisions. The key distinction between an adopted treaty and an incorporated one lies in their form within municipal law. While adoption relies heavily on the stance of municipal courts, incorporation and transformation, leading to legislative enactment, may encounter barriers as courts exercise discretion in applying treaty principles. Thus, despite their theoretical underpinnings, both adoption and incorporation theories face practical challenges contingent upon judicial interpretation and implementation within domestic legal systems.
4. CASE LAWS :
In the landmark case of State of West Bengal v Kesoram Industries Ltd. & others, the Constitutional Bench of the Supreme Court of India established that the Doctrine of Dualism, rather than Monism, is applicable within the Indian legal context. This means that international law does not automatically become part of domestic law without specific adoption or incorporation by the legislature. However, the Court also articulated that if the provisions of a treaty are not restricted by municipal law, the Supreme Court can interpret and apply the statute, even if India is not a signatory to the treaty. This underscores the Court’s recognition of the importance of international legal principles in interpreting domestic laws, albeit within the framework of dualism.
In the case of Civil Rights Vigilance Committee S.L.R.C. College of Law Bangalore v. Union of India and others, the High Court of Karnataka addressed the evolving relationship between International Law and Municipal Law. Acknowledging the increasing relevance of international law on both the global and domestic fronts, the Court noted the emergence of unique challenges regarding their interaction. However, the Court emphasized that Municipal Law and International Law are founded on different sources and principles, potentially leading to incompatibility between the two systems. This highlights the complexities involved in reconciling the principles and norms of international law with those of domestic legal frameworks, particularly in contexts where they may diverge or conflict.
5. CONCLUSION :
The interaction between national and international legal structures is a fundamental aspect of contemporary legal systems, with each operating within its own jurisdiction and addressing distinct issues. Both national and international laws play crucial roles and often complement each other in addressing various global challenges. Monist theorists assert that International Law holds supremacy over Municipal Law, positing that it can resolve issues arising within any state. This perspective marks a departure from the traditional view of International Law solely governing relations between nations, as it now encompasses individuals and other entities transcending state boundaries.
According to theorists like Kelsen, International Law applies to all aspects of human life and is not subordinate to any other legal system. In the monist framework, Municipal Laws are regarded as part of International Law, and compliance with international norms is contingent upon the consent of nation-states. However, in practice, few countries strictly adhere to pure dualism or monism. States tend to follow international law when it aligns with their interests and disregard it when it does not. The core principle of these doctrines is to maintain harmony between national and international legal systems, eliminating distinctions between foreign and domestic laws and promoting their interdependence for more effective judicial processes.
6. BIBLIOGRAPHY :
International law – Treaties, Sovereignty, Conflict | Britannica
International and Municipal Law: An ultimate guide – iPleaders
Relationship between international law and municipal law – International Law Essays (lawaspect.com)
Relationship Between International Law And Municipal Law – Law Corner
Relationship Between International Law and Municipal Law UPSC notes (unacademy.com)
What is the relation between International Law and Municipal Law? (lawbhoomi.com)
