Open Access Research Article
COMPARATIVE ANALYSIS: BETWEEN THE RELATION OF INTERNATIONAL AND MUNICIPAL LAW.
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“COMPARATIVE ANALYSIS: BETWEEN THE
RELATION OF INTERNATIONAL AND MUNICIPAL LAW.”
AUTHORED
BY - ANISHA KUMARI
First Sem
LLM Student, IILM University Greater Noida
Under
supervision of Rachit Sharma
Abstract
The relation between international
law and municipal law is comprehensively analyzed in this paper. This research paper majorly talks about the
different aspects of both the laws. International law focuses on the interstate
whereas municipal law talks on the ties between citizens and the states. The
international law is known as public international law whereas municipal law
is private international law. In this article the focus is about the
differences in between and deep analysis of laws through various aspects like
their meaning, the existing legislations, historical background, theories,
recent development and changes in both the laws, current case laws regarding
this and above all the comparison between different states. The article
influences the importance of both the laws as well as their own deficiencies.
In international laws the subject matter is regarding the laws of nations
their applicability in world wide sphere .The united nation and their
organization like WHO ,UNESCO,
international labor organization and so
on but In
municipal law this is applicable only in the territory of the
state between the citizens .It deals the private laws like civil and criminal
law ,commerce and trade ,business in
the specific territory .The
article also emphasis on the pros and cons of international and municipal
law. This particularly looks at the overlapping of several terms and concepts
in two areas of laws.
Keyword;
International law, municipal law, states and citizens, legislation, theories,
united nation, organizations, pros and cons, comparison, legal spheres and
suggestions.
Introduction
The
Law of Nations or International Law is the name for the body of customary and
treaty rules which are considered legally binding by the States in their
intercourse with each other. International Law consists of the rules and
principles of general application dealing with the conduct of States and of
international organizations in their international relations with one another
and with private individuals, minority groups and transnational companies. It
may be described as ‘the sum of the rules accepted by civilized States as
determined by their conduct towards each other, and towards each other
subjects.’ Municipal law is the national, domestic, or internal law of
sovereign state defined in opposition to international law. Municipal law
includes not only law at the national level, but law at the state, provincial,
territorial, regional or local levels. While, as far as the law of the state is
concerned, these may be distinct categories of law, international law is
largely uninterested in this distinction and treats them all as one. Similarly,
international law makes no distinction between the ordinary law of the state
and its constitutional law. The question of the extent to which as a matter of
municipal law the organs of the state –
i.e.
courts and other agencies administering law- applying international law is
clearly the question of Municipal Law. The application of international law in
municipal court depends upon the Constitution of the State. Public
international law leaves each country to decide on the relationship between
international law and municipal law. In some countries international law automatically
becomes part of municipal law whereas in some countries they specifically adopt
international law. Legislature and court systems are different on the
international and municipal levels. Where the municipal level uses a
legislature to help enforce and test the laws, the international court system
relies on a series of treaties without a legislature which, in essence, makes
all countries equal. Enforcement is a major difference between municipal and
international law. The municipal courts have a law enforcement arm which helps
require those it determines to follow the rules, and if they do not, they are
required to attend court. The international court system has nonenforcement
and must rely on the cooperation of other countries for enforcement.
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 Organizations 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".
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 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.
Municipal
Law
The
Black’s Law Dictionary, defines the term “Municipal Pal Law” as:
B. A. Garner (Ed. in Chief), Black’s Law Dictionary "The ordinances
and other laws applicable within a city, town or other local government
entity". Thus, Municipal Law is the acts made by the legislature or the
Law-making authority of a state, applicable to that state alone. Municipal Law
governs the Municipal aspects of government dealing with issues between
individuals, and between individuals and the administrative apparatus. In its narrower
and more common sense, pertaining to a local governmental unit, commonly a city
or town. In its broader sense, pertaining to the public or governmental affairs
of a state, nation, or of a people. Relating to a state or nation, particularly
when considered as an entity independent of other states or nations.
Relationship
Between Municipal Law And International Law
While
international law is applied in the relations of the states and to other
subjects of international law, national or state law which is called municipal
law. Is applied with in a state to the individuals and corporate entities which
are the bearers of rights and duties there under. Apparently, it might be looking
that there is hardly any relationship between the two system as they constitute
two different legal systems each of which is designed to operate in its own
sphere and they applied distinctly to their subjects by different courts, but
it is no so. The problem of the relationship between the rules of international
law and municipal law is one of the most controversial questions of legal
theory. originally the relationship between the two laws was a matter of
theoretical importance i.e., whether international law and municipal law are
parts of universal legal order to they are form distinct system of law but at
present the question has acquired ’practical significance as well. When there
exists a conflict between the rules of international law and municipal law, a
court is faced with of the difficulty of arriving at a decision. Before an
international tribunal, the question is one of primacy, whether international
law takes primacy over municipal law, or vice versa. If the conflict arises
international law between Municipal courts, the answer depends on how far constitutional
law of the state allows international law to be applied directly by the courts.
Almost every case, in Municipal court, in which a rule of international law is
asserted to govern, the decision rises the problem. For instance, diplomatic
immunities granted by international law would become meaningless unless they
are recognized by municipal law. Further customary rules of extradition are
interpreted and applied by municipal courts only. It is also be noted that
international law gives an individual certain rights obligation which can be
enforced directly in national courts was alleged in the Pinochet case Generally
the manner in which international law is employed in the national courts of any
particular country is largely determined by the national law of that country.
In fact, international law cannot work without the co-operation and support of
the national legal system. The question of the relationship of the two systems has
acquired importance in modern international law also because very large part of
it is directly concerned with the activities of individuals who come under the
jurisdiction of municipal courts. Thus, it is in municipal courts an increasing
part of international law is enforced.
of
Relationship among International Law Traditional Approch-
Theories
and Municipal Law 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 Lauterbach, 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 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.
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.
monism
Considers International law and Municipal law to be part of the same body of
Knowledge i.e. Law. Monists assume that the internal and international legal
system forms annuity. They both operate in the same sphere of influence Andrae
connected with the same subject matter and thus can come into conflict, but if
there is conflict then international law will prevail. Monism dictates national
law that contradiction international law is null and void, even if it is the
constitution.
In
Kelsen’s view, the ultimate source of the validity of all law derived from a
basic rule “Grundnorm” of international law.
His
theory led to the conclusion that all the rules of international law were
supreme over international law that municipal law inconsistent with
international law was automatically null and void and that rules of international
law were directly applicable in the domestic sphere of states. International
Law and Municipal Law are two phases of one and the same thing. The former,
although directly addressed to the States as corporate bodies is as well
applicable to individuals for States are only groups of individuals.
Dualism
The
dualist doctrine developed in the century. This theory considers international
law and Municipal law to be separate legal orders operating and existing
independently of one another. Dualists emphasize the difference between these two
laws and require translation of international law into Municipal law. Without
the translation, international law does not exist as law; international law has
to be national law as well. International law is the law applicable between
sovereign states and is dependent on the common will of states for its
authority whereas Municipal laws apply within the state regulating the
activities of citizens and have source of authority form state itself. But when
both these laws deal with same subject matter there will be conflict, a Municipal
Court following the dualist doctrine would apply municipal law. Thus, this
doctrine considers international law as weak law as it is a law among states made
of an agreement. A German scholar, Trippel, 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, 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
laws deal with the same subject matter, a municipal court using the dualist
concept would apply municipal law. 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 be nothing more than people's will.
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 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 when 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 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.
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 “transformational”
mechanisms to implement treaties and norms into their municipal laws. 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.
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 behaviors 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.
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. 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 will be implemented.
This
idea can be viewed simply as a reaction to Dualism and other positive 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. Landmark 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.
Problems associated with the application of International
Law in Municipal Courts
Many
domestic courts lack professional capacity correctly to apply international law
norms, as most domestic judges have little, if any, international law
experience or training. The practical problems which the municipal judge may encountering
the application of such norms are essentially of two kinds: the first relates
to the ability of the municipal judge to gain acknowledge of the content and
meaning of International Public law while the second relates to the scope that
is open to him to apply International Public Law in the face of the rules of his
own legal system which define his status and role. Independence and quality of
some municipal courts and judges in questionable; such problems of limited capabilities
and politicization may be exacerbated if domestic courts were to deal more
frequently with inter-national law norms, often characterized by a high degree
of politically sensitive and legal complexity. Also, as compared to rules of
municipal law, the rules of International Law suffer from greater uncertainty.
International law lacks effective executive authority to enforce its rules. Due
to the lack of effective sanctions, rules of international law are frequently
violated. Its enforcement machinery is very weak. It cannot be denied that the
concepts of Sovereignty and Domestic Jurisdiction are the formidable obstacles
in the basic recognition. A great limitation is international law cannot
intervene in the matters which are within the domestic jurisdiction of States. For
example, whenever the U.S. raised the matter of alleged violation of human
rights in Soviet Union (i.e., its treatment of dissidents) the latter took the
plea of non-interference in the internal matters. One should note that the
movement toward increasing the international law-applying capabilities of
municipal courts and the greater utilization of that capacity in actual
practice is by no means universal. Perhaps paradoxically, two groups of states
have been largely left out of the process of increased international law-application:
states that strongly resist the penetration of international law into their
domestic laws already largely reflect international norm.
Thus,
rendering redundant the invocation of the latter. Any long-term strategy for
integrating domestic courts within the international judiciary by bolstering their
role in implementing international law must therefore account for uneven
geographical and political prevalence of the international law application.
Implementation
of International Law in Indian Municipal Law
The constitution
of India Under articles 51, 73, 245& 246 has given consideration to
‘international laws’ and ‘treaties’, but the clause ‘c’ of Art. 51 specially
mention ‘International law ’and ‘treaty obligation’, but art. 51 do not give
any clear guidance regarding position of international laws in India as well as
the relationship of municipal laws and international law but we can gather the
guidance from Prof. C.H.Alexan drowicz who says that expression ‘international
law’ in Art.51 connote ‘Customary International law’ and ‘treaty obligation’
stands for ‘Treaties’. In India International law are part of municipal laws
provided that they are not inconsistent with any legislative enactment or the
provision of the constitution. Indian court can apply International law if they
are not inconsistent with the rule of domestic law.
Indian
constitution follows the ‘dualistic’ theory with respect to incorporation of
international laws in to municipal law. International treaties do not become
part of national law in India automatically. They must be incorporated into legal
system by an act of parliament. The court first look at the municipal law and
if the municipal law is silent on a point then the court will refer to the
Customary international for the reference, the same thing has been done by the
SC time and again and in the case of Jolly George Varghese and Anr. The Bank OF
Cochin AIR 1980 S.C 470 accepted this view. In Shri Krishna Sharma VS The State
of the West Bengal AIR1980 S.C 470 the Calcutta HC stated that:
“If
the Indian Statutes are in conflict with any principle of International Law,
the Indian Courts will have to obey the laws enacted by the legislature of the
country to which they owe their allegiance. In interpreting and applying
municipal law, the Courts will try to adopt such a construction as will not
bring into conflict with the rights and obligations deductible from rules of
internal law. If such rules or rights and obligations are inconsistent with the
positive regulation of municipal law, the courts override the latter. It is
futile in such circumstances to seek to reconcile, by strained construction
which irreconcilable.”
In
another case
A.D.M.
Jabalpur VS Shukla AIR 1954 CAL 591
Justice
H.R. Khanna in his dissenting held likewise by stating that if there is a
conflict between municipal law International Law (customary International Law),
and the Courts shall give municipal law. However, in some cases Supplied
Customary International law also, the case of Gramophone Company of India Ltd.
VS Birendra Bahadur Pandey AIR 1984 SC 667 clearly state the observations of the
Supreme Court which relates to the binding force of the customary rules of
International Law. From the decision of this case it was made clear that the
Indian Courts shall apply customary International Law in India to the extent
they are not inconsistent with the municipal laws. it was held by jury that if
there is not a law regarding any subject matter in India then for the same
reference can be taken from Customary International law. As to treaties it has
been stated by Basu in his commentary on Constitution of India that treaties
are not implemented by legislation are not binding on municipal courts. The
same thing is stated in Article 253 of constitution May 5, 2021)
LANDMARK JUDICIAL DECISIONS
South West Africa
case
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 case
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
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. &
others
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. Chopra
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. King
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.
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.
CONCLUSION
International law regulates state action in 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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Article Information
COMPARATIVE ANALYSIS: BETWEEN THE RELATION OF INTERNATIONAL AND MUNICIPAL LAW.
Authors: ANISHA KUMARI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/15
- Issue 7
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International Journal for Legal Research and Analysis
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