June 13, 2021

Important Theories of under International Law

International law

Introduction

Over the period of time municipal law and international law has always been considered superior over one another and different theories which refers to the underlying relationship of both has been brought up by jurists from time to time enlighten the controversy of the reigning law over one another. There have always been controversial talks on relation to the use of international law and municipal law as a single conception of law or whether these laws are independent to each other. Two theories evolve from the above mentioned namely as theory of monism and dualism. Monists believe. It becomes a monistic view when international law and municipal law are expressed as an entity but opposing to the same dualism refers to when international law becomes a part of municipal law only when it is expressed in the legislature. To further express the dualistic point of view the undermentioned theories underline the viewpoint regarding the application of international law within the sphere of municipal law.

Theory of specific adoption or Theory of transformation

According to this theory of dualism a relation between international law and municipal law is established where the internal law by its own cannot be adopted be used in municipals courts or as a rule of law of the state it should be transformed or should be adopted by the state as a rule of law into the municipal law. To understand better we need to look into the matter that the law should not be incorporated but should be transformed or adopted into the municipal law. The difference between the terms is that the former adopts incorporated international law into the municipal law just because of the fact of the necessity of international law, the latter suggested an act to be adopted on the part of the concerned state. Also, incorporation states that the rules of international law are to rule of the land adopting it thus making them national laws whereas in transformation theory international law are only considered national law when they are included into the legislature deliberately. Similarly, treaties are also perceived to be promises, and to make them binding into the municipal law under transformation theory, their transformation into statutes is extremely important as statutes are municipal command as per transformation theory.

Thus, its underlying motive is for the legislature of the nation to transform intention law in to the rule of nation for it to be recognized by the court of law as the law of the nation. This fairly results the courts and the municipal law to bind the powers of international law to its people individually.  The transformation process is sine qua non, meaning it sis absolutely necessary to recognize international law as the law of the land. This theory even faced its share of criticism by monists stating that the difference between treaties and statutes is procedural and not as perceived in the transformation theory and thus stipulate many legal consequences. Therefore, it is incorrect to say that treaties need transformation to be binding in the municipal law. Also, the perception of municipal law and international law being treated as different is fallacious also the perception of binding of international law to states and municipal law to individuals is also incorrect.

Thus, it can be understood the the theory of specify adoption or transformation speaks to the implication of international law to the sovereign state is only possible when the state specifically adopts the law by enactments. The treatment of international law and municipal law to be binding among states and individuals respectively projects and conclusion that the implication of intermating law by the states not only bounds states but the induvial in the states as well.

Delegation theory

This theory is evolved with the criticism of the previous theory and the critics of transformation theory, monists have brought forward this theory that each state or sovereign has complete right constituted by international law called “constitutional rules of international law or treaty” which permits the states or sovereigns to adapt the extend of international law applicable in the state. Meaning the states can decide when and to hat extend international la are to be implemented in the state and on their people depending upon its incorporation in the municipal law. Thus, there is no transformation or no specific adoption of the international law like in the previous theory. There is no incorporation on new rules into the state law but only the acceptance of one single act for the creation of the international rules needed by the state. The requirement of state law is important for the functioning of the state and thus is the responsibility of the legislature to enact law which are beneficial and are of importance to the state. With the implementation of adoption theory, the state can implement international law as per the requirement and the need of the state. Thus, letting the constitution to apply the rules of international law in the state. The critics of this theory believe it to be a reaction against the dualism theory.

The irregularity in the meaning of “constitutional rules of international law” when defining the said theory is an area of criticism the theory attracts. This theory involves the supremacy of international law but often fails to explain the relation between the laws and the state and does not define the co relation between the internals laws and municipal laws. Also, the theory suggests the that national laws would not yield to international rules which seems unjust and unreal from the view point of the critics as well. The biggest point of critics explains hoe thus theory is not able to recognize the authority and does not suggest that each state is a sovereign of its own.

CASE LAW

Gramophone co. ltd. Vs b. b. Pandey [1]

Facts:

The appellant was a well-known manufacturer of musical records and also held the ownership to the copyright of the records. A consignment of pirated copy of the same records manufactured by the appellant ad had arrived at the port of Calcutta. The appellant was made aware of the situation and it was found that the consignment was from universal ltd. Singapore and was to be dispatched to Nepal. The appealed filed an appeal under Section- 53 of the Copyrights acts to the registrar of copyright. This gave the right to the registrar after the deemed enquiry to order the copyrighted products by an entity outside India from an entity inside India to not be imported. All the copies which were found to infringe the copyright laws in India by a foreign company is restricted to be imported under section 11 of the Customs Act, 1962. All copies confiscated under such investigation are to be returned to the source as well.

Judgment of High Court:

As the case proceeded it was found the the registrar wasn’t taking the necessary action as the must should after the filed application of the appellant and it was appended that the castes were to be realest to Nepal itself. The appellant then filed a writ petition in the Calcutta High Court seeking a writ in the nature of mandamus to order the registrar to pass the necessary order under section- 53 of the Copyrights Act and to stop the release of the tapes to Nepal. The High court passed an order instructing the appellant to analyze the imported cassettes and if they were found to infringe the copyright they are to be kept separately and not to be released until the further notice. Realizing the same the consignee filed an appeal stating that the definition of “import” as stated in the law does not only implicate the bringing of products to India, but also incorporated the mixing of the goods with the mass of the property in the local area. Therefore, analyzing the treaties India had with Nepal it was found that there was no importation of the products when they are brought to India and were originally enroute to Nepal. Thus, the court dismissed the said appeal by the appellant and forced him to move to the higher court.

The issue faced in the case with respect to international pertains whether there is any protection available to the aggrieved party in the treaties and mandated of international law or in the Municipal law which has obtained the said treaties of the international law in the land. Thus, the questions arise is whether international law id a law of its own and supersedes the municipal law preset in the state if a conflict arises or whether the municipal law holds power over international law.

Judgement of Supreme Court:

Justice Chinappa Reddy in the judgment lays down the importance of the recognition of the international law and the authority of the municipal law on the acceptance of the said international laws. International laws may be accommodated by municipal laws even without the legislative sanction of the state provided there do not arise any dispute between the same. The doctrine of incorporation also states that the recognition of international law as a part of municipal law by states without its incorporation into the legislature is valid when there arises no dispute between the two laws. But in cases of conflict between the laws it can be observed that municipal law prevails. Similar if any international law is subjected to be rejected by the parliament no national court can say yes to the same law. They court of the nation also cannot endorse such laws if them arise a conflict between the laws of the sates and international laws but can otherwise. But the courts are within their rights to interpret national law to establish the principles of international law in the state. The courts in this case were only concerned with the interpretation of the law and the doctrine of incorporation to determine any conflict of interest between the two laws. Thus, they stated that according to to section-53 of Copyright act the definition of ‘import’ is not only limited to bringing of the products across the borders to the country for commerce but any transit from outside the borders to India can be deemed as import. Hence all the interpretation of the word is in accordance to the international treaties between India and Nepal and is in no conflict with the state laws. Thus, the judgment was overturned by the Apex Court.

Conclusion

With respect to the mentioned theories and the judgments for the prominent case laws in India it can be obtained that there has always been a conflict when it comes to the understanding of the supremacy of international law and Municipal law. Hence numerous theories including the theory of specific adoption and delegation theory is an attempt by the scholas to make a worldwide benchmark of the understating of relation between the two laws.

It can also be observed that these theories are not always accepted and thus lack a worldwide acceptance of only one of the theories. Also, as observed in India any conflict between the two laws results in the dominance of the municipal law, but it does not mean the ignorance to the treaties and laws laid down by different organizations in respect to international laws. In conclusion international law is an independent system of laws where its, manifestant in the state is only dependent on the provisions of the municipal laws and the law-making authorities.

The acceptance of these laws is subjected from state to state but it should be observed that the presence of the same is viciously important to govern the relations between two or more states. The theory of delegation and specific adoption confirms the importance of international laws and underline an important aspect of how these theories brings into light the presence of international law and its adoption and acceptance by the states to constitute an equal ground for the nations worldwide to settle disputes. It can also be observed that the constant negligence and criticism of the present theories is of utmost importance to the formation of new and better theories for the acceptance of a singular theory worldwide. Till then, these theories brilliantly explain the relation of international law and municipal law and the constant battle of the apex law still prevails.     

1. (1984) SCC 534

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