The relationship between International Law and Municipal Law has long been a subject of debate among jurists. When these two bodies of law conflict, how do states and courts determine which law takes precedence? This article delves into the intricate relationship between International and Municipal Law, examining the various theories that explain their interaction and how different states practice these theories.
Theories of Relationship
Dualistic Theory
The Dualistic Theory asserts that International Law and Municipal Law are two distinct legal systems. This theory was initially developed by the German scholar Triepel and later refined by the Italian jurist Anzilotti. According to this theory, the two systems differ in several key aspects:
- Sources: Municipal laws are derived from customs within a state and statutes enacted by the sovereign. International Law, on the other hand, is based on customs among states and treaties they conclude.
- Subjects: Municipal Law regulates relations between individuals and the state, whereas International Law governs relations between states.
- Substance: Municipal Law is sovereign over individuals, while International Law is an agreement between sovereign states.
- Principles: Municipal laws are obeyed due to state authority, while International Law is respected because of the principle of pacta sunt servanda (agreements must be kept).
- Dynamism: International Law is dynamic and evolves over time, while Municipal Law tends to be more static.
According to Dualists, Municipal Courts prioritize Municipal Law over International Law in cases of conflict. However, International Courts apply International Law.
Monistic Theory
Monistic Theory posits that International Law and Municipal Law are part of a single legal system. German scholars Moser and Martens initially proposed this theory, which was later developed by Austrian jurist Kelsen. The Monistic view holds that both laws serve the human community and should be seen as manifestations of one unified legal order. Monists believe that:
- Both legal systems ultimately serve individuals.
- Both laws are commands binding on subjects independently of their will.
- International Law and Municipal Law are not separate but are part of a single legal framework.
Treaties
Treaties in Great Britain require enabling legislation to be binding on Municipal Courts. This is especially true for treaties affecting private rights, financial obligations, or common law. However, exceptions exist, such as the European Convention on Human Rights, which is directly binding without needing enabling legislation.
India
The Indian Constitution, under Article 51, promotes international peace and respect for International Law. However, the application of International Law in India depends on whether it is customary law or treaty law.
Customary International Law
Indian Courts generally follow the doctrine of incorporation, applying customary International Law unless it conflicts with domestic laws. This was affirmed in cases like Gramophone Company of India Ltd. v. Birendra Bahadur Pandey.
Treaties
Treaties in India do not automatically become part of the law unless implemented by legislation, as per Article 253 of the Constitution. This principle has been upheld in cases like Birma v. State of Rajasthan and Shiv Kumar Sharma v. Union of India. However, international conventions related to human rights have sometimes been applied directly by courts when there is no inconsistency with domestic laws, as seen in Vishakha v. State of Rajasthan.
Conclusion
The relationship between International Law and Municipal Law is complex and multifaceted. Both the Dualistic and Monistic theories offer insights but are not entirely sufficient on their own. The practice of states indicates a blend of these theories, with a need for harmonization between the two legal systems. Courts and legislatures play a crucial role in ensuring that International and Municipal Laws work together to serve the broader goal of justice and human welfare.