National/Municipal law is the law of the sovereign governing individuals and their conduct within the state and is concerned with the internal relations of the state. On the other hand, International law deals with the rules which are considered legally binding by sovereign independent states in their relations with one another and is considered with the external relations of the state. The relationship between International law and Municipal law is a controversial question of legal theory.
The understanding of the relationship between the two systems is important to understand because of the following reasons:
1. The law of treaties can be only understood once we understand the relationship between the two legal systems.
2. Whether the international law will be directly applicable within the state by the Municipal Court.
3. An increasing part of the international law is directly concerned with the activities of the individuals who come under the jurisdiction of Municipal law.
Theories on the Relation between International Law and State Law
1. Monistic Theory
This theory talks about the unity of the law between municipal law and international law. Monists have a unitary concept of law and see all law as an integral part of the same system. Following are the points which are put forward by Monists:
a. Both Municipal and International law have a common origin from the law of nature. They not only resemble each other but at the same time, spring from a single grund norm or standard which is the foundation head of all laws. They regard law as a single unified field of knowledge.
b. Both are part of a universal body of legal rules binding all human beings. It is the individual who really lies at the root of the unity of all law.
c. The substance of the law is the same in both the systems i.e. a command binding upon the subjects irrespective of their will. Therefore, there is no superiority of one system over the other.
In actual practice, states are in the negation of this theory and they do not follow this theory. They treat international law and municipal law as two separate systems of law. States do not like to compromise with their sovereignty.
2. Dualistic Theory
The chief exponents of dualism are the positivist writers like Triepel and Anzilotti. According to them, the will of the state is the sole criterion for the creation of rules of international law. There is a fundamental difference between both of the systems; the rules of the one are not expressly received into the other system. Oppenheim observed that the law of nations and the municipal law are essentially different from each other. These two systems at law differ from each other on the following grounds:
a. Origin: Municipal law is the will of the state, while international law is the common will of the states. The source of municipal law is the custom grown up within the state and statute enacted by the legislature while international law is made up of custom grown up within the family of nations and law-making treaties.
b. Subjects: Municipal law regulates the relation of the individuals of the state, whereas international law regulates the relation between member-states and international organizations having international personality.
c. Nature/Principles: The rules of municipal law are in the nature of commands which must be obeyed, whereas the rules of international law are in the nature of promises based on pacta sunt servanda.
It is not correct to say that the pacta sunt servanda is the only basis of international law.
It fails to explain the binding force of customary rules of international law in regard to which the states have not given their consent. Secondly, It is not correct to contend that international law is binding only on states. Today, International law is binding on states, individuals and certain other non-state entities.
3. Theories having Monistic/Dualistic Perspective
Germinating from the theories (Monism and dualism) on the jural relationship between international law and municipal law, two more theories are propounded. These are:
a. Transformation or Specific Adoption Theory: It is based on the dualist concept. According to this theory, no rules of international law, by its own force, can claim to be applied by municipal courts, unless they undergo the process of transformation and be specifically adopted by the municipal system. The rules of international law are part of national law only if deliberately included.
b. Delegation Theory: This theory postulates that there is the delegation of a right to each state constitution by the rules of international law called “Constitutional rules of international/treaties”, which permit each state to decide or determine for itself as to how and when the provisions of international treaty or convention are to come into force and in what manner they are to be implemented or embodied into State law.
According to this theory, neither municipal law nor international law has the supremacy to each other; they are made to solve the problems of humans. If there is any contradiction appears, they are required to be harmonized. The judges of municipal as well as international forums should aim at harmonizing the system rather than to treat one system superior to others. This harmonization of rules can be made in two ways. Firstly, it is the duty of the judge to eliminate contradiction by their juristic reasoning. Secondly, enactments in the municipal legal system of a state should be made to avoid contradiction.
State practices as to the operation of International law within Municipal sphere
a. Customary International law: In the early days, Blackstonian doctrine was used, which meant that the law of the nation is part of the state law. Today, the practice is that ‘Rules of customary international law’ are part of the land and will be applied as such as the municipal courts subject to the following qualifications:
I. Customary rules will be applied by the British courts if it has attained the position of general acceptance.
II. The rules should not be inconsistent with the provisions of British statute laws.
III. Once the scope of customary laws is determined by final authority then all British courts are bound by them.
b. Practice as to Treaties: In England, the executive is accountable to the Parliament for the conduct of foreign affairs. Majority of treaties which are part of international law do not ipso facto become the law of the land unless expressly adopted or incorporated by the Parliament through legislation so as to make them part of the land. No legislation is required for certain specific treaties which do not alter municipal law.
2. United States of America
a. Customary International law: American practice is the same as British practice. The court is bound by the law of the land. Customary law is accepted without any legislative measure as part of the American law provided that there is no domestic law which is contrary to the customary international law. Customary International law is subordinate to all the domestic statutes.
b. Practices as to Treaties: The constitution of the United States makes specific provision for the application of the international treaties. Treaties are given supreme importance as it is evident from Article 6 of the constitution which provides that all treaties made by the United States shall be the supreme law of the land; thus treaties are put at an equal footing with federal statutes.
a. Customary International law: Article 51(c) provides that “the state shall endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with one another.” This article is kept in part four of the constitution which means that it shall be the duty of the state to apply these principles in making laws. Article 371(1) of the constitution provides that all the laws in force in the territory of India immediately before the commencement of this constitution shall continue in force until altered or repealed. So the previous practice that the customary rules of international law becoming part of the law of the land still applies in India.
b. Practices as to Treaties: The executive of India is having powers to bind India into treaties as given by the provisions of the Constitution of India. The Parliament has no share in treaty making. Implementation of the treaty is regulated by the legislature of India through Article 253, which gives power to the Parliament to make any law for whole or part of the country to implement any treaty, agreement or convention. The Judiciary of India gave the Judgment that the treaties which involve cession of Indian territory or affecting private rights of citizens must be enacted by legislation to become enforceable.