Relationship between International and Municipal Law: Comparative Analysis

I. Introduction

Understanding the relation between the two laws is essential for comprehending the connection between international and municipal law. These two systems are usually considered separate legal systems with their own set of provisions and concepts. Foreign law is a set of norms and regulations that govern how people behave outside of their own country. To put it another way, international law is a system of laws that govern how governments operate. The country's constitutional statute, on the other hand, is known as municipal law. Understanding the differences between these two laws necessitates a number of requirements.²

International law has a complicated and intense relationship with a nation's internal legislation. The two systems are commonly thought of as separate legal systems with their laws and concepts. Whether International Law and Municipal Law on the several national laws constitute a unity as expressions of a common notion of law or if International Law is an independent system of law different from Municipal Law, there is a conflict of opinions. International law has evolved in a way that is different from municipal law. The relationship has generally been classified as either monist or dualist.³ A monist or dualist view has typically been used to describe the link between international and local law. While this classification is debatable, the methodology taken by a country has a significant impact on the efficacy and implementation of international law inside its legal system.⁴

When there is a contradiction between International & Municipal Law, the Court must determine whether municipal or international law takes priority. The subject of importance (one law will triumph over the other) governs international courts and tribunals. Still, whether or not municipal courts can use international law is regulated by the country's Constitution and national laws and regulations. Without the assistance of national legal systems, international law cannot function effectively and would become irrelevant.⁵

II. International law

Definition of International Law

1. Oppenheim: "International Law is the body of rules legally binding on States in their intercourse with each other. These rules are primarily those which govern the relations of States, but States are not the only subjects of International Law. International Organisations and, to some extent, individuals may be the subjects of rights conferred and duties imposed upon International Law".

2. Black's Law Dictionary: "The legal system governing the relationship between nations; more modernly the Law of International relations, embracing not only nations but also such participants as International organizations and individuals".

3. Hall: According to Hall, " International Law consists in certain rules of conduct which the modern civilized states regard as being binding on them in their relationships with one another."

4. J.G. Starke: "Int. Law may be defined as that body of law which is composed for its more significant part of the principles and rules of conduct which states feel bound to observe, and therefore, do commonly keep in their relations with each other, and which includes also;

(a) The rules of law relating to the functioning of international institutions or organizations, their relations with each other, and their relations with states and individuals; and

(b) Specific rules relating to individuals and non-state entities so far as the rights or duties of such individuals and non-state entities are the concern of the international community".⁶

Nature of International Law

There are two views on the subject: International Law is a true law, or International Law is not a true law.

Law is not simply the creation of a sovereign monarch or State; it has existed in various societies without the consent of a sovereign. Several rifles exist but are not implemented by sovereign governments, even though they have statutory authority. These regulations are founded on international conventions such as the Geneva Convention and The Hague Convention etc. Many conflicts are now resolved by international treaties and conventions rather than moral arguments. The presence of international law is not denied in resolving many international disputes; instead, it is stated that the parties' actions are consistent with international law. It is not proper to argue that conformity with international law is unaffected by sanctions or fear of repercussions. The United Nations Charter has numerous clauses in this regard. The United Nations' very existence is predicated on the existence of a legal framework of international law. The rulings of the International Court of justice are binding on all parties, according to article 94 of the United Nations Charter.

Weakness of International Law-

Lack of legislative authority - The most significant problem is that state legislatures do not enact international law. Lack of executive power - There is no adequate executive power for enforcing international law. The International Court of Justice (I.C.J.), based in Hague (Netherlands), does not have the competence to hear cases from all countries. Furthermore, cases can be filed in this Court with the consent of all parties involved. As a result, the International Court of Justice is not indeed authorized. Lack of sanction – in the case of International Law, there is no sense of sanction or fear? Lack of effective control over powerful states – The United Nations Organization (U.N.O.) has many powerful and weak member states. Uncertainty – it does not have the same level of certainty as State or municipal law. Furthermore, it is unable to maintain international peace and order in general. No right to intervene in domestic affairs – international law does not have the authority to intervene in domestic affairs.⁷

III. Municipal law

According to Black's Law Dictionary, municipal law is described as "the ordinances and other laws applicable inside a city, municipality, or other municipal government units".⁸

Municipal law refers to the laws that apply to a specific state or city (legally referred to as a "municipality") and the government organizations that operate within those cities or counties. This can apply to various topics, including police authority, urban development, educational policies, and real estate taxes. ⁹

Article 27 of the 1969 Vienna Convention on the Law of Treaties states that when a treaty conflicts with a state's municipal law (including its Constitution), the State is still bound by the treaty's obligations. The only exception is if a state's expression of consent to be obligated by a treaty was a direct breach of a "rule of its internal law of fundamental importance," as defined in Article 46 of the Vienna Convention.¹⁰

IV. Relationship between international law & municipal law

It is assumed that state municipal law regulates individual behaviour inside the State, whereas international law regulates nation-to-nation relations. However, the scope of international law has expanded, and it now dictates and controls not just state-to-state relations but also member-to-member ties in the international community. Currently, international law applies not just to nations but also to individuals and non-state entities, and both rules are in sync with one another.¹¹

Difference between International & Municipal Law

Both laws have distinct roots in various areas. To begin with, International Law is primarily concerned with state relations. On the other hand, municipal law governs the interaction between individuals and the State and between individuals within a state. Moreover, in the case of International Law, the law that exists between sovereign States isn't above them, and the States themselves make the law. States frequently disregard rules or make laws that serve their interests under International Law. However, in the case of Municipal Law, the law is believed to be above persons, as it is in most nations' laws, the law is believed to be above persons. Finally, the origins of both laws are different. The most definitive declaration of the sources of law for Public International Law is Article 38 of the International Court of Justice's Statute. It cites legal sources such as traditions, conventions, treaties, and broad principles of law, acknowledged by civilized nations, court decisions, and highly competent publicists' teachings. In Municipal Laws, however, a hierarchy of laws defines which legal command is more important than others. For example, in many nations, a hierarchy of courts is constructed, with higher courts' judgements having greater authority and being relied upon by the courts. ¹²

Municipal Law regulates relationships between persons inside a state and between persons and the State, whereas International Law is primarily concerned with connections among states. International law, on the other hand, governs interactions among the members of the United Nations family. Municipal law governs relationships between those subject to a particular state's jurisdiction and those subject to that State's jurisdiction. The Law of Nations is a law that governs the relationship between sovereign states rather than above them. On the other hand, municipal law is the law of a sovereign over persons subordinated to his will.¹³

Domestic law refers to a country's legislation and (to a lesser extent) rules that describe how to interpret the country's or its subdivisions' legislation. International law is referred to as a "treaty" because it usually does not explicitly constitute a crime or restrict anyone from doing something. Instead, a treaty or "international law" binds a country that is a party to the treaty to enact domestic legislation that implements the treaty's provisions. This can declare some behaviours unlawfully, restrict or mandate a specific behaviour, or establish standards for particular activities. In most cases, breaking international law bears no consequences; only the domestic law of the person's home country or the jurisdiction where the conduct was performed determines whether a crime has occurred. ¹⁴

Monism

Municipal law functions exclusively within its municipal jurisdictional bounds, whereas international law functions solely at the international level. On the other hand, natural law proponents think that municipal and international law combine to produce a unified legal system known as Monism. Those who reject dualism theory and support the monist approach can be divided into two groups: those who, like Lauterpacht, retain a strong ethical stance with a concern for human rights, as well as individuals who, like Kelsen, keep a monist stance on formalistic logical reasons. The monists are unified in their acceptance of a unified conception of law as a whole instead of the positivists' rigorous division. Monists believe that the domestic and international legal systems are the same. Whether lawful or illegal activities are determined by national legal norms and international laws that a state has adopted, such as through a treaty.¹⁵

International law doesn't have to be translated into municipal law in a pure monist state. It is integrated into national or domestic laws and takes effect automatically. The act of ratifying an international treaty converts the law into municipal law instantly, and customary international law is also considered part of national law. As if it were national law, international law can be directly implemented by a national judge and immediately invoked by citizens. Because international norms take precedence in some countries, a court might deem a national regulation unconstitutional if it violates international standards.¹⁶

According to Kelsen, the ultimate basis of the legitimacy of all legislation is a basic rule of international law known as the "Grundnorm." His argument led to the conclusion that all international law rules were superior over domestic law, that any municipal statute that conflicted with international law was inherently null and void, and that international law principles were immediately applicable in states' domestic spheres. States do not follow this notion in practice. Instead, they argue that municipal and international law are two different legal systems. As a sovereign state, each one is not bound by international law. States abide by international law merely because they choose to be bound by it and for other reasons.¹⁷

Dualism

A German scholar, Triepel, and an Italian scholar, Anzilotti, devised the dualism concept. International law and state law, according to dualistic writers, are two distinct bodies of law. The fundamental notion of Dualism is that International Law and Municipal Law are two different and different systems in terms of their purposes and fields of activity so that the norms of one would not apply to the other without a positive act of reception or transformation. Thus, international Law and Municipal Law are two distinct fields of law, and International Law can never be implemented in a state without being incorporated or transformed into Municipal Law.

Individuals and groups are the primary focus of municipal law, whereas states focus on international law. Municipal law's primary duty is to regulate the State's internal functioning and the relationship between the State and the person. In contrast, international law's primary role is to monitor state-to-state interactions. International law applies between sovereign nations and is based on the common will of states. However, municipal laws exist within the State and regulate individuals' actions and have power derived from the State itself. However, if both of these laws deal with the same subject matter, a municipal court using the dualist concept would apply municipal law.¹⁸

The sources of law, its subjects, and subject matter are the primary distinctions between international and domestic law. International law is derived from states' collective will, its subjects are the states themselves, and its subject matter is international relations. Domestic law is derived from the sovereign's or State's will, its subjects are persons inside the State, and its subject matter is the relationships between persons and government. Dualism's criticism was that international law applies to nations, persons, and other non-state entities in the contemporary era. The idea that state will is the basis of state law is false; State will is nothing more than people's will.¹⁹

Specific Adoption Theory

International law, according to positivists, cannot be directly implemented in the realm of state law. It must be explicitly adopted in the sphere of municipal law to be enforced. In short, international law can only be implemented in the realm of municipal law if municipal legislation allows or approves it. Only when municipal law authorizes or embraces international law may it be used in the realm of municipal law.²⁰For example, it has adopted the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights under the Protection of Human Rights Act, 1993.

Legislative ad hoc inclusion of international rules is another term for this idea of international law implementation. According to this viewpoint, international rules are only applicable within the State legal system if and when particular implementing legislation is passed by the competent parliamentary authorities.

Legislations like, Treaty provisions are translated into national law by an act of Parliament (statutory incorporation). The different obligations, powers, and rights arising from the international provisions are detailed or without reformulating the international rule being included (automatic incorporation). Parliament urges the automatic implementation of the international norm within the National legal system.²¹

International treaties as such, it is maintained, cannot be enforced in the municipal field unless they are specifically adapted or transformed. The Indian Parliament passed the Diplomatic Relations Act, 1972, to accept the Vienna Convention on Diplomatic Relations, 1969. The Indian Extradition Act of 1962, the United Nations Convention Against Apartheid Act of 1981, the Anti-Hijacking Act of 1982, etc. In Jolly George V. The Bank of Cochin, the Supreme Court of India declared that while the member nations' positive commitment drives legislative action at home, this will not automatically make the covenant binding under Law in India. The criticism of this theory was that this perspective is incorrect in terms of all international law because many elements of international law (particularly customary rules) are implemented in the realm of municipal law without formal adoption.²²

Transformation theory

As per this theory, the transformation of the treaty into national laws is the only way to justify the application of international accords' provisions to individuals. The transition is more than a formality; it is a need. Exponents of this idea argue that to apply international law in the realm of municipal law, the norms of international law must be transformed. As international law becomes more widely accepted, it undergoes various changes. It cannot be applied to Municipal Law unless it is transformed. States use particular "transformational" mechanisms to implement treaties and norms into their municipal laws.²³

The Automatic Standing Incorporation of International Laws is another name for this theory. According to this notion, incorporation happens when a national constitution or law states that all state officials and nationals and other individuals living in the State's territory are obligated to follow current or future international law. Thus, any appropriate rule of International Law, whether customary or treaty law, is automatically incorporated into National Law under an internal rule, without the need for a particular National Law to include it. As a result, whenever a country signs a treaty or a new customary rule emerges, states must follow it without question.²⁴

In various aspects, this theory is flawed. To begin with, the assumption that International Law and Municipal Law are two separate systems is false. Secondly, the second premise that International Law solely binds Governments whereas municipal law only binds persons is false because International Law is the totality of the principles that civilized states have accepted as regulating their behaviour toward each other and their citizens. Thirdly, the theory addresses the transition of treaties into national law to enforce them. However, this is not always the case because converting treaties into national laws varies by country. And this is not the case with treaties that make laws.²⁵

Delegation Theory

The criticism of the Transformation theory led to the development of the Theory of Delegation. According to proponents of this idea, powers have been assigned to the constitutions of various states under the statutory principles of international law to assure how and to what degree these powers are exercised. Domestic law is based on treaties. It does not lead to transformation or the enactment of new legislation. As a result, there is no transformation or specific adoption in every situation. In the realm of State law, the rules of international law are applied in accordance with the process and system in place in each State, as set out in its Constitutions.²⁶

International Law delegated rule-making authority to each State based on the method and system in place in that State, as well as the Constitution and Rules of the Treaty or Convention that member states sign and adhere to. This theory states that the guidelines of international law known as "Constitutional rules of international/treaties" delegate a right to each state constitution, allowing each State to evaluate or determine for itself when and how the regulations of an international treaty or convention will come into effect and how they will be implemented.²⁷

This idea can be viewed simply as a reaction to Dualism and other positivist views; yet, one may wonder where and what the constitutional standards of international law are. When did these rules delegate power to state constitutions, and how did they do so? Every nation is equal and independent, and no control over or above it is recognized. ²⁸Landmark English and American cases have established that international law is an element of those countries' municipal law. The United States has consistently applied the principle that international law is a part of domestic law. All international agreements that the United States has ratified and customary international law that has acquired the United States' consent are obligatory on American courts, even when they conflict with statute provisions. There is a presumption that the U.S. Congress didn't want to overrule international law in times of conflict.²⁹

V. Comparative analysis

United Kingdom

The courts should, in theory, give respect to clearly established standards of international law, according to U.K. public policy. Various hypotheses have been proposed to explain why international law laws are applicable inside the jurisdiction. The theory of transformation is one manifestation of the positivist–dualist perspective. This is based on the belief that there are two distinct systems of law functioning individually and that any rule or principle of international law must be explicitly and precisely 'transformed' into municipal law using the suitable constitutional machinery, such as an Act of Parliament before it can have any effect within the domestic jurisdiction.

The U.S.A.

Apart from the requirement to consider the Constitution, the American view on the link between municipal law and customary international law appears to be reasonably similar to British practice. 'As a general concept, it is, of course, true that the United States has a fundamental national interest in complying with international law,' the U.S. Supreme Court stated in Boos v. Barry³⁰. The Constitution, on the other hand, applied to international law. The prevailing view is that customary international law in the United States is federal law and also that the federal courts' decisions are binding on state courts. The notion of precedent and the requirement to act according to previously decided decisions bind U.S. courts. They, too, must apply legislation over any norms of customary international law that conflict with it.

Other Countries

It is plausible to assert that the same principles apply in other nations where English common law has been adopted, such as the majority of Commonwealth states and, for example, Israel. Overall, customary law is considered part of the law of the land. Municipal laws are believed to be non-incompatible with international law, although the former takes precedence in a dispute.

In the Reference Re Secession of Quebec ³¹decision, the Canadian Supreme Court remarked that in a number of situations, the Court had to resort to international law to assess the rights or responsibilities of some entity inside the Canadian legal system.

India

The provisions of international law are only referred to in the most general terms in the Indian Constitution, implying that the drafters of the Indian Constitution were exceedingly ambiguous in defining the position of international law in the municipal domain. The link between international law and domestic law is not well defined in our Constitution. India's domestic laws, including the Constitution, should not be interpreted as defying international law in the event of any uncertainty. Every effort should be made to construe national laws as being in accordance with international law. Nonetheless, the Constitution remains the highest law of the State, and in the event of a direct dispute, the Constitution shall take precedence. The Indian legal system would accept international laws as long as they did not supersede national laws and followed the rules established by international laws and standards.

VI. Landmark judicial decisions

South West Africa case³²

Former League of Nations State Members Ethiopia and Liberia launched a separate procedure for the issues raised in South Africa on November 4, 1960, to keep the League of Nations mandate for South Africa alive. The Court was requested to clarify why South Africa was still a mandate territory, had broken its commitments under the mandate, and was thus subject to U.N. legal authority. On May 20, 1961, the Court determined that Ethiopia and Liberia had similar interests and decided to join the trial. South Africa has filed four primary challenges to the Court's jurisdiction. The Court dismissed them and confirmed their authority in a judgment dated December 21, 1962. The Court convened a public hearing from March 15 to November 29 1965, to hear oral arguments and declarations and the second stage of the judgment, after the defence was essentially concluded within the time limit set at the parties' request.

Barcelona Traction case³³

Belgium sued Spain on behalf of Belgian nationals (P) who had invested in a Canadian firm, claiming that Spain was accountable for actions of international law that had harmed the Canadian firm and its Belgian shareholders. The Court dismissed this case, demonstrating the distinction between naturally sovereign persons on a national and international level. The Court found in favour of Spain since Belgium was not responsible for the conflict in Spain and stockholders seeking compensation were not accorded diplomatic immunity.

Civil Rights Vigilance Committee S.L.R.C. College of Law Bangalore V. Union of India ³⁴

While assessing this case, the High Court of Karnataka analyzed the relation between International Law and Municipal Law. With the increasing relevance of International Law on the global and municipal scene, several unique and novel questions about the relationship between the two are beginning to be raised.

The Hon'ble High Court, on the other hand, decided that because municipal and international law are based on distinct sources, the two systems can become incompatible.

State of West Bengal v Kesoram Industries Ltd. & others³⁵

In this decision, the Supreme Court's Constitutional Bench concluded that the idea of Dualism, not Monism, applies in India; however, if the local legislation does not limit the scope of the statute, the Supreme Court can interpret it even though India is not a signatory to the treaty.

Apparel Export Promotion Council V. A.K. Chopra³⁶

The Court expelled the Corporation's superior officer for abusing a subordinate female employee, according to the vishakha norms. The Court goes on to say that in situations involving violations of human rights, judges must always be aware of international instruments and conventions and apply them to the facts of the case when there is no conflict between international norms and the state law that governs the situation.

While dealing with the matter, the High Court appeared to have completely ignored the purpose and content of international conventions and norms.

R.V. Keyn (Franconia Case)

Within the British Maritime Belt, the German ship Franconia crashed with a British vessel. One person killed when the British vessel sank. The master of the German ship was found guilty of manslaughter by a British court. However, the Court's jurisdiction was questioned because the incident occurred within British territorial waters.

The House of Lords decided that the English Court was bound by municipal law, which did not provide jurisdiction. Hence there was no jurisdiction. However, Parliament countered this by enacting the Territorial Jurisdiction Act of 1878, which broadened the jurisdiction.

West Rand Gold Mining Co. V. King

This was a South African company that worked in a gold mine. The Company's gold was confiscated by government officials, who were required by law to compensate the Company or restore the gold. However, the British defeated South Africa, and the gold was taken to England. The Company then sued the English government for the return of the gold or compensation. The Crown issued a declaration stating that the British government, as its successor, would not honour the South African government's pledges. The Corporation was not liable to get gold or compensation, according to the Court, because the Crown Declaration was Municipal Law that was enforceable on Municipal Courts. Thus, municipal law prevailed in this matter.

Chung Chi Cheung V. King³⁷

Chung worked as a cabin boy on a Chinese ship. He shot and murdered the Captain while the vessel was in Hong Kong Territorial Waters. & still, another individual, C, was dutifully enlisted. The dispute was whether the Hong Kong Court (a British Colony at the time) had jurisdiction to hear the case. The Privy Council ruled that the Court was competent to hear the case. The guilty verdict was upheld.

VII. Conclusion

International law regulates state action in the international society, while municipal law covers individual activity within a state's jurisdiction. International law is concerned with a country's external affairs, while municipal law is concerned with its internal issues. International Law is weak compared with Municipal Law because it is not law above, but law between States. Both municipal and international legal systems operate autonomously with one another, with no assumption of conflict or hatred. Both systems are crucial and mutually supportive and interactive in connection to numerous transboundary concerns in the current setting. For instance, the State's secondary responsibility is delegated to an international authority established under international law. Monism and Dualism are commonly thought of as two conflicting conceptions of the interaction between international and municipal law. Many modern scholars believe that Monism and Dualism have limited explanatory power as theories because they fail to reflect how international law operates within states. Whatever the case may be, Monism and Dualism are powerful analytical tools. They serve as standard starting points for research into the relationship between international and municipal law. Thus, International law no longer only applies to nations; it now applies to individuals. International law increasingly moved toward a human commonwealth that included individuals, states, and other aggregates that cut state borders.

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