To understand the relationship between International Law and Municipal Law, it is important to know the link between the two laws. International Law is a set of rules and actions related to national behaviour. In other words, International Law is a set of rules that apply when States interact. On the other hand, Municipal law is also known as the National Law of the country. There are various theories to recognize the difference between these two laws.
The relationship between international law and municipal law has traditionally been characterized from a monist or dualist perspective. While this characterization remains contested, the approach a country adopts has a great significance for the effectiveness and application of international law within the domestic legal system.
The conflict have led to the emergence of different theories. Prominent among them are as follows :-
1. Dualistic theory
2. Monistic theory
According to dualistic theory, International law and municipal laws of the several States are two distinct, separate and self-contained legal systems. Being separate systems, International Law would not as such form part of the internal law of a state.
Dualistic view was developed by a prominent German scholar Triepel in 1899. For him, International Law and domestic or municipal law existed on separate planes, the former governing international relations, the latter relations between individuals and between the individual and the state.
The theory was later on followed by Italian jurist Anzilotti. Starke says that the theory represents two entirely distinct legal systems International Law having an instrinsically different character from that of State Law. The above authors are of the view that the two systems of law differ from each other on the following grounds:-
(a) Regarding Sources – According to dualists, while the sources of municipal laws are custom grown up within the boundaries of the states, the sources of International Laws are custom grown up among the States and law- making treaties concluded by them.
(b) Regarding Subjects – Municipal law regulates the relations between the individual and corporate entities, International Law regulates primarily the relations between States.
(c) Regarding Principles – Municipal laws in a state are obeyed because they are the principles of State Legislatures, International Law is obeyed because of principle of pacta sunt servanda. Thus International law is followed because States are morally bound to observe them.
(d) Regarding Dynamism of the Subject Matter – Subject Matter of the two systems are also different. While the subject matter of international law has always remained dynamic, the subject matter of the municipal law is limited.
Dualist theory is subjected to many criticisms
Firstly, the view that international law and municipal law differ from each other implies that international law cannot be a part of municipal law. It’s not correct because there are certain fundamental principles of international law which are binding upon a state, even against its own will.
Secondly, it is not correct to say that international law regulates the relations of states only at present it regulates certain activities of individuals as well.
Thirdly, no doubt, pacta sunt servanda is an important principle of international law, but it cannot be said that it is the only principle on which international law rests. There are certain rules which are legally binding on a State.
Monistic theory was founded by two German scholars, Moser ( 1701-1785) & Martens ( 1756-1821).
According to Monistic theory, municipal law as well as international law are parts of one universal legal system serving the needs of the human community in one way or the other.
Monism maintains that all the laws are made for individuals only. While municipal law is binding on them directly, international law is binding on them through States. Since both the laws are meant to solve the problems of human beings in different areas; they both are related to each other. According to them, subjects of both the systems of law are ultimately individuals.
According to this theory, international law and municipal law should be considered as manifestations of a single concept of law. Because there is no difference between these.
Monistic theory is subjected to many criticisms
It is very difficult to disapprove 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 bot bound by international law. States follow international laws simply they give their consent to be bound and on account of other reasons.
Application of Rule of Law in International Law (India)
The British said that they were the originators of this concept when Sir Edward Cox stated that the King obeyed God and the Law, which would eventually abolish the Rule of Law in the business of the Chief Executive. Professor Albert Venn Dicey later developed this concept. He was an individualist. He wrote about the concept of the Rule of Law at the end of the golden age of Victoria Laissez-Faire in England. For this reason, the concept of Dicey’s law is useless.
The doctrine of the rule of law has been classified into three meanings in Dicey’s book. The three meanings include:
- The supremacy of law;
- Equality before the law;
- The predominance of legal spirit.
Municipal and International legal system operate in their own domain without any presumption of conflict or hostility to each other.
Both systems are important and mutually supportive and interactive with each other in contemporary context in relation to many trans-boundary issues. For example, state has the secondary responsibility lies with international authority formed under international law.
International law is not concerned at all about domestic law unless domestic law or domestic Act infringes or violates the assumed or assigned international obligation ( for that State) emanating from international law. Examples can be taken from forms of government or South African apartheid policy under article 4 ( discriminates indigenous black voters) of the Electoral Act as well as in the constitution of South Africa violated an obligation as they assumed by ratifying 1965 UN Convention on the Elimination of Racial Discrimination. Here the obligation of domestic law comes into conflict with international obligation.
Kelsen also believes that International Law covers all aspects of human life. Monistic theorists view that International Law does not come under any Law, rather Municipal Laws are a part of International Law.
Contributed by: Srishti Sharma (Ideal Institute of Management and Technology)