INTERNATIONAL LAW & MUNICIPAL LAW

Public International Law is composed of the laws, rules, and principles of general application
that deal with the conduct of nation states and international organizations among themselves as
well as the relationships between nation states and international organizations with persons,
whether natural or juridical. Public International Law is sometimes called the "law of nations" or
just simply International Law. It should not be confused with Private International Law, which is
primarily concerned with the resolution of conflict of national laws, determining the law of
which country is applicable to specific situations. 

Public international law is the body of rules that is legally binding on States and international
organizations in their interactions with other States, international organizations, individuals, and
other entities. It covers a range of activities; such as, diplomatic relations, conduct of war, trade,
human rights and sharing of oceanic resources

 Traditionally, international law regulated interactions between States. For example, it

determined how a State treats foreign diplomats who are in its country or how
international agreements between States are to be regulated.

For example, international law sets out legal obligations, responsibilities, and rights of one State
against another. This aspect of international law is based on sovereign equality. In other words,
each State is a sovereign and each State is equal to, and independent of, all other States. This
means that when international law regulates the relations between States, it applies equally to all
States.

 International law also regulates relations between States and non-State actors; for
example, individuals, international organizations, and multinational companies. In the
case of individuals, international law gives each individual certain rights. For example,
international human rights law gives the individual a right not to be tortured. This means
that a government cannot torture someone they deem a terrorist to obtain information.
International law also imposes on States certain obligations and responsibilities to protect
individuals. For example, when States are at war, one State cannot target and kill
civilians of the other State who did not take part in hostilities.
 It important to remember that international law is not stagnant. It is evolving.
International law covers diverse subjects and has multiple fields of application. For
example, we find that international law applies, inter alia, to:  initiation of wars (laws
relating to use of force); conduct of war (humanitarian law); diplomatic relations
(diplomatic law); trade and investment; treatment of people (human rights law); ocean
resources (law of the sea); protecting the environment (environmental law),  space law,
and to certain crimes (international criminal law).

What is Public International Law? It is the body of rules and principles that are recognized as
legally binding & which govern the relations of States and other entitles invested with
international legal personality.
Relationship between International Law & Municipal Law: It should be presumed that
Municipal Law is always enacted by each State with due regard for and never in defiance of the
generally accepted principles of International Law (Co Kim Chan v. Valdez Tan Keh).

It is a settled principle of International Law that a sovereign cannot be permitted to set up his
own Municipal Law as a bar to a claim by foreign sovereign for a wrong done to the latter’s
subject (US v. Guatemala).

In principle, international law operates only at the international level and not within domestic
legal systems—a perspective consistent with positivism, which recognizes international law and
municipal law as distinct and independent systems. Conversely, advocates of natural
law maintain that municipal and international law form a single legal system, an approach
sometimes referred to as monism. Such a system, according to monists, may arise either out of a
unified ethical approach emphasizing universal human rights or out of a formalistic, hierarchical
approach positing the existence of one fundamental norm underpinning both international law
and municipal law.

A principle recognized both in international case law (e.g., the Alabama claims case between the
United States and the United Kingdom following the American Civil War) and in treaties (e.g.,
Article 27 of the 1969 Vienna Convention on the Law of Treaties) is that no municipal rule may
be relied upon as a justification for violating international law. The position of international law
within municipal law is more complex and depends upon a country’s domestic legislation. In
particular, treaties must be distinguished from customary international law. Treaties are written
agreements that are signed and ratified by the parties and binding on them. Customary
international law consists of those rules that have arisen as a consequence of practices engaged in
by states.
The Constitution of the United States stipulates (Article VI, Section 2) that treaties “shall be the
supreme Law of the Land.” Treaties are negotiated by the president but can be ratified only with
the approval of two-thirds of the Senate (Article II)—except in the case of executive agreements,
which are made by the president on his own authority. Further, a treaty may be either self-
executing or non-self-executing, depending upon whether domestic legislation must be enacted
in order for the treaty to enter into force. In the United States, self-executing treaties apply
directly as part of the supreme law of the land without the need for further action. Whether a
treaty is deemed to be self-executing depends upon the intention of the signatories and the
interpretation of the courts. In Sei Fujii v. State of California (1952), for example, the California
Supreme Court held that the UN Charter was not self-executing because its relevant principles
concerning human rights lacked the mandatory quality and certainty required to create justiciable
rights for private persons upon its ratification; since then the ruling has been consistently applied
by other courts in the United States. In contrast, customary international law was interpreted as
part of federal law in the Paquette Habana case (1900), in which the U.S. Supreme Court ruled
that international law forbade the U.S. Navy from selling, as prizes of war, Cuban fishing vessels
it had seized. Domestic legislation is supreme in the United Stateseven if
it breaches international law, though the government may be held liable for such a breach at the
international level. In order to mitigate such a possibility, there is a presumption that the U.S.
Congress will not legislate contrary to the country’s international obligations.
 The United Kingdom takes an incorporationist view, holding that customary international law
forms part of the common law. British law, however, views treaties as purely executive, rather
than legislative, acts. Thus, a treaty becomes part of domestic law only if relevant legislation is
adopted. The same principle applies in other countries where the English common law has been
accepted (e.g., the majority of Commonwealth states and Israel). Although the incorporationist
view regards customary law as part of the law of the land and presumes that municipal laws
should not be inconsistent with international law, municipal laws take precedence over
international law in cases of conflict. Those common-law countries that have adopted a written
constitution generally have taken slightly different positions on the incorporation of international
law into municipal law. Ireland’s constitution, for example, states that the country will not be
bound by any treaty involving public funds without the consent of the national legislature, and in
Cyprus treaties concluded in accordance with its constitution have a status superior to municipal
law on the condition of reciprocity.

In most civil-law countries, the adoption of a treaty is a legislative act. The relationship between

municipal and international law varies, and the status of an international treaty within domestic
law is determined by the country’s constitutional provisions. In federal systems, the application
of international law is complex, and the rules of international law are generally deemed to be part
of the federal law. Although a treaty generally becomes operative only when it has been ratified
by a national legislature, EU countries have agreed that regulations and decisions emanating
from EU institutions are directly applicable and enforceable without the need for enabling
legislation—except for legislation permitting this form of lawmaking, which is adopted upon the
country’s entry into the union (e.g., Britain’s adoption of the European Communities Act in
1972).

Relation between International Law and Municipal Law.

There are certain theories that have been propounded to explain the relationship between
International Law and Municipal Law. In general it is notionally accepted that the state
municipal law control the conduct of individuals within the state while International Law
controls the relations of nations.  But now this concept has altogether been changed and the
scope of International Law has increased and it not only determines and controls the relations of
states but also the relations of members of International community.  Both the laws have
cohesion with each other and the relations between these two are more prominent.  These
theories have been put forward to explain the relationship between International Law and State
Law.  Of all these theories as per following details, the most popular are the Monism and
dualism and they are diametrically opposed to each other:-

1.   MONISTIC THEORY:-It is also known in the name of Monism theory.  According to the
exponents of this theory International Law and Municipal Law are intimately connected with
each other. International Law and Municipal Law are the two branches of unified knowledge of
law which are applicable to human community in some or the other way.   All Law are made for
individuals. The difference is that municipal law is binding on individual while International
Law is binding on states. Conclusively it can be said that the root of all laws is individual.
According to Strake, “International Law is part of state Municipal Law and therefore decisions
can be given by Municipal courts according to the rules of International Law.”
 According to O. Kornell, “The objective of all laws is human welfare whether it is state
municipal law or International Law.”

2.   DUALISTIC THEORY: - In view of the dualistic theory writers, International Law and state
Law are two separate laws and contained legal systems.  The Monist view of law is part of
philosophy according to which totality is a single structure.  But within the framework of the
unitary universe is diversity of phenomenon.  International Law cannot become part of state
municipal Law till the principles of International Law are applied under State Municipal Law.
According to Strake, “The main foundation of the proponents of dualistic theory is that state
Municipal Law and International Law are two different legal systems because the nature of
International law is fundamentally different from State Municipal Law.”
Angilotti has also recognized both the systems as two different legal systems.  According to him
the fundamental principle of State Municipal Law in compliance of law enacted by state
legislature while principle of International Law is Pacta Sunt Servanda i.e. to honour the
agreements executed between the states.”

The main basis of separation of these two systems is as follows:-

 The main source of International Law is customs and treaties while in case of Municipal Law
are an enactment by sovereign power.
 International Law controls the relations between state while state law controls the relations
between state and individuals.
 The main cause of compliance of state law is fear of sanction while the basis of compliance
of International Law is the moral liability and vested interests of states.

3.   THEORY OF SPECIFIC ADOPTION: - International Law cannot be directly enforced in the

field of State Law.  In order to enforce it in the field of Municipal Law it is necessary to make its
specific adoption.  The theory of adoption is based on Hague convention-1970, Vienna
Convention-1972 and Tokyo Convention-1975.  In case of Jolly George v/s Bank of Cochin-
1980: The court held that any agreement does not become part of Indian constitution
automatically, but the positive commitment of state parties inspires their legislative action.”

The use of International Law in different countries like India, Britain, America and Russia.  The
rules of International Law and treads have been based in a different ways e.g.

 INDIAN ADOPTION :- The International Law has been given important place and mention
the customary rules of International Law in Article 51(6) of the Indian constitution with the
following strive :
 To increase international peace and security.
 To maintain just and good relations among states.
 To increase faith and honour for use of International Law treaty, obligations in natural relations
and conduct of organized people.
 To act as mediator to encourage for settlement of international dispute.

Some of the cases in this regard are : i) Shri Krishna Sharma v/s State of west Bengal-1964 :
It was decided that whenever the court interprets the domestic Municipal Law, it should be taken
into consideration that it does not go against International Law.
ii) Magan Bhai, Ishwar Bhai Patel v/s Union of India-1969:- Court accepted the
implementation of Kutch Agreement between India and Pakistan on the basis of correspondence
between them.  Similarly there are two other case viz: Vishakha v/s State of Rajasthan-1997.
and Apparel Export Promotion Council v/s A.K.Chopra-1999: In both of the cases the court
held that the right of sex equality of women has assumed the important rule of International Law
and its convention, court said that in cases of violation of human right the court should always
consider international documents and conventions and should make them binding.

 British Adoption: In Britain International customs are treated as part of domestic law. 
British courts apply international customs subject to the conditions (i) International
customary  rules are not inconsistent with British Laws (ii) they are accepted by lower courts
when the limit of these customary rules are fixed by High Court. For use of treaties, the case
of International Tin Council v/s Dep’t., of Trade and Industry-1900: the Lord Council
decided that in England treaties are not binding automatically. It is binding only when the
Parliament makes it a part of English Law and incorporates in Law by enactment of law in
this regard.

Adoption in America:  In America the courts interpret the state law in such a way that it does
not go against International Law.  The rules of customary International Law are treated as part of
State Law.  It has been done in the case of Paqueta Habana Case- 1900: It was held that
International Law is part of our state Law and when any question or case relating International
Law is filed before courts of proper powers then the rights based on these questions should be
determined and enforced.

4. THEORY OF TRANSFORMATION: - The exponents of this theory contented that for the
application of International Law in the field of Municipal Law, the rules of international
law have to undergo transformation.  Without transformation they cannot be applied in the field
of Municipal Law.

According to Strake: - “That the rules of International Law can be applied when they are
transformed in to domestic law, is not necessary in every case.”

5. THEORY OF DELIGATION: - The theory of transformation has been criticized by the

Jurists with the result of this it put forward a new theory called Delegation theory.  The
supporters of this theory say that according to the statutory rules of International Law, the
powers have been delegated to the constitution of different states o ensure that how and what
extent according to International Law.  States to determine as to how International Law will
become applicable in the field of Municipal Law in accordance with the procedure and system
prevailing in each state in accordance with its constitution.

CONCLUSION: - Last but not the least in a recent case namely, Chairman, Railway Board &
others v/s Mrs. Chandrima Das and others-2000: The supreme Court of India observed that the
International Conventions and Declarations as adopted by the United Nations have to be
respected by all signatory states and meaning given to the words in such declarations and
covenants have to such as would help in effective implementation of those rights.