CHAPTER Theories on Relationship between Municipal Law and International Law SYNOPSIS Introduction... soso 65 G) Question of Supremacy........ 67 Theories. on Relationship Between (4) Operation of International Municipal Law and Intemational Law... 66 Law in Domestic Spher 61 DualistPluralist Theory —(Positivists? (5) Who can be Subjects... 67 View) . £6) Monist Theory (Kelsen’s View): 67 (1) Supporters... 66 (1) Propounde 67 (2) Basic Premi 66 (2) Basic Premise... 67 (3) Question of Supremacy 66 ) Variation from” Naturalists (4) Operation of Intemational View... : Law in Domestic Sphere 66) Monist-Naturalist Theory 68 (5) Who can be Subjects 67) Practical View on Relationship betwecn Monist Theory (Naturalists? View) 61] Municipal Law and International (1) Supporte «67 Law/Theories of Co-ordination, 68 (2) Basic Pret 67} CONCIUSOR vn 69 INTRODUCTION4, a er o pute raternaTTOR A LAW % UNICIPAL LAW AND ITE Ry i ™ I, the, ny ei EEN M 1 1:6 ON RELATIONSHIP BeTw' THEORI Law nent theories, manicly. dali hay and eal are ao pre jee municipal law and international fay, tations Hearse theories are, by and large, varity, ota is well, but ‘There are number of jurists who have PHO, 4 in theories ier to escape tie dichotomy of Suling He Hina” goon will enumerate important tenets and yy! ature of relationship between Municipal, There the nature of Te other theories aforesaid (wo Hut theories monism. between Vi of coordination in "Following discussion Hey, ous theories on the 1 DuallevPluralist Theory (Posiivists View). rn (1) Supporters : ; Dualists theory is based on the doctrine of positi Positivists like Triepel” & Strupp. Jef Basic Premise Basic premise of dualist theory is that the municipal leg: international legal system are two separate s1 ystems a two distinct subject matiers. White mAnicipal laws the States, "international ‘AW governs external afi ‘municipal legal system is independent of internati estrectemammtcme 9) @uestion of Supremacy According to dualists, since j lernational law a ici is ; ‘et and muni in tw independent splieres, icither of the legates can aap appeal in ; binding 6 other 5 ‘stem. However, in ¢: ica ee UCN are and“munt cipat faw, the municipal cou; ill gi aw ferrin the intemational law) ~~ ~y7 ” According to this theory, internat : Ac > International law does not per ati Te Oj within domestic lurisdiction of the States. For instance, eve re gemaal consent to an internati D ns will nor “ (4) o; ic ic i | (4) Operation of. International Law in Domestic Sphere | ional treaty, Operational a Ie National level, otf in the domestic janetc ion GOT Ft l y a Suitable “State action “Th ch a munpal Tea “isn pala By : "us: When a municipal Tee oe ion rule ro Seal cules, this is done ta Sera Sovere r Within its juri ar inter Siteriaiona gy?" Som*Ste jurisdiction, ana papap eenetmenes i 33 . 2 Velkerrech a; Lande ; * Strupp, El esrecht (1899) i Pp. Element (2 Bin at) sted Broascraper Theor no can De Subjects o contend th ast ‘theory.(Naturalists. View) ee ns ‘supporters sch La awghtespa nth ee Q ae Premise municipal legal: gaan and intemaiong ‘THe gent systems But ps ind international egal system are not two ! ( question of Supremacy 7 ore to this theory, it is internati ‘eco : internatic ww whi fl sieves mal law which determines the personal petence an intemational law which Satis ipal_systems.are a pa ternational legal. fi ‘gal. system. wt 5 eae superior to mc 0 way of legato Therefore, its, since international law and rational law are p J: ccording to, mons ‘st international law automatically becomes, part of the nati if a State 1 ratifies an Intemational treaty, scoording to i Wy the wea a will_be=automatically." operational, witun fee toe enloce : \d the. municipal. ise i] cipal courts ill have (Se of such treaty. se the terms, be Subjects yy) Who can Naturalists contend that primary~ )ful iduals. ‘Therefore, meson fional law. internation: aw.) Isen’s View): Monist Theory (Kelsen S «tPropounder : ‘ ositivists who propounded his own theory 0” nded his own Hans Kebsen® as. postive” between municipal law an’ international law ont . are not_two ey Basic Premise d_ international leg: legal_ system The municipal legal system an sit oF acommion leg On er. indeperident systems but pé i ind Human Ris gh 950 2c nT pat ee nt he State (1945), 363-8085 st fori instance, ial are, the {Lest Iteration! Low General Theory of Law an‘rder which lays down the pa vons.° According to Kelsén, thats each legal norms relic “it_is_basic norm U8 fo! i Kelsen, ). ‘According (0 Bes ie ic norm) (Grundnorm is timate reason for validity of th fy, OT Teal order which 15 the Me Sth rath bas! internation Jo legal orders. 100) . . “Th ene - “The state. This basic norm, as formulated by Kelsen, is as follows: naa aes. oy A This basic norm, which has emer! ily behaved’. shave as the; have, customaril i i beh ted the development of international law, One® Je of effectivens® jas Suppo! ol e prac! ice, . a ig ae the legal principles developed in this process is the princip The principle of effectiveness recognises “revolution to.be.4.1aN¥s! creating fa, and accepts the_first legislators of a state” who, in turn, establish cosstitation of the new,State ‘which Serves as a basic norm for development of y, national legal system. erent Monist-Naturalist Theory icipal legal orders ay ‘AeGording to this theory “the international and_municip. subordinate to. third legal order, usually postulated in terms of natural law oF ‘generat principles of law’, superior to both and capable of determining their TES) « ecitre ple 5 aemcauasnrmaoaice resp Practical View on Relationship between Municipal Law and LE ET jes of Co-ordination: —-——"~ Tactical view on. this, relationship essentially accepts the dualistic with some modifications. According to ihe theory ae ahi “i ferent spheres and each is supreme in its intern: al Taw, as systems, work in diff ptt N28 SYSTEMS, MOUS Meaney owt field. The question of conflict arises when a State does not act according \ ling’to ~# ginny challenged on the ground that it violates customary intern: Simi, the Statutes prevail over the earlier customal ry or treaty rule. 38 (b) Treaties isions for conclusion of int ary : ns lernati n contains express provisio! i ic pa The US Constr of validly concluded treaties on the domestic lay pene an Constitution provides ‘all Treaties made or whi, Article VI, Section 2 of the the United States, shall be the supreme lay ith the authority of ; a ae he Judges in every state shall be bound thereby, anything i te { ithstanding’. Thus, vali, Constitution or Laws of any state to the contrary nanaitts ff 8 «Us, Validy concluded international treaties have been given overriding effect over the St, laws of the US. The same Article also provides that while President has the power to may international agreements, he may ratify such treaties only if at least two-thirds v the Senate approves. However, executive agreements are exceptions to thir provision as the can be made by the President on his own authority withog requiring the Senate consent. The US, practice on implementation of tk international treaties within domestic jurisdiction is based on the nature ¢ agreements. For this purpose, the agreements are classified as ‘self-executing’ ani ‘non-self-executing’ agreements. The former are able to operate automatically within the domestic ‘sphere as‘@ part of the supreme law without the need for any municipal legislation, while the latter are obliged to undergo a legislative transformation before they can be enforced against American citizens « . institutions, To distinguish a treaty from self-executing to non-self-executing, thet are no general rules and the courts have to consult the treaty itself to try to dedus the intentions of the signatories and examine all the relevant circumstances.” Shaw, p. 115, 33. See the Filartiga v. Pena-Irala, 630 F. 2d 876 (1980); 77 ILR, p. 169 as cited in Shaw, p. 116. MS it i Sha Restatement of US Foreign Relations Law, St. Paul, 1987, Vol. I, pp. 48-52 as citedit 35. Committ itiz iving in Nic in Shay,p. se ‘States Citizens Living in Nicaragua v. Reagan, 859 F. 22d 929 (1988) 3s . See Third Ri : i Shaw, p, Le teen! of US Foreign Relations Law, St. Paul, 1987, Vol. I, pp. 63-9 as cited* 3%. Sei Fujii. California, 38 Cay (2d) 718 (1952), tind pelo! eration ional s Hf ian constitutional scheme regardin, vs indian law. con: ticle ger Te one of rect paKing Artic jurisd ia we take a 100k at the practic \ a © of Ina. onal law in the domestic ie col ction, Jet urts in matters of t US tak applicatio ig the telationship bet fs © an overview of the ‘Cen international law stitutional Scheme 51(c) of the Constituti A ( 1 for internat tion provides that « sspect for international law an the States shall endea VOUT 10... ae : id treaty the many directive principles ohne, obligations. This provision i : n is Ie principles are not justiciable, these pine of India. Although the e il i ve govemance and the State is duty bound inciples are fundamental in the er (0 apply these principles while 46(1) of the Constitution provides tha exch le 246(1) stitution provides that the Parliament hi ive f the Consti xclusive ction to enact laws in respe th ick mM Tespect of matters enumerated in List I of of the Seventh Siete The matters of ‘foreign affairs; all th i ine Union into relation with any foreign country’? mater which will nd trade relations’, United Nations Organisation’ 3! Homiatic, consular am ational conferences, associations and other bodies and apie ouietae menting of decision: countries countries s made thereat’,"” ‘Entering int je le , (0 treaties and agreements wit is 8 with fore oe. implementing of treaties, agreements and conventions Te a een provided in the List I. Thus, Parliament has exclusive jurisdiction to enact laws in respect of international matters. Further, Article 253 also pro’ art of convention wil ides that Parliament has power to make any law for the whole or any the territory of India for implementing any treaty, agreement or ith other countries or any decision made at any international conference, association or other body. Article 73 of the Constitution confers legal capacity on the Union government to exercise executive power in respect of all the mi Parliament has power t affairs. Thus, in India, executive (b) Application of International Law in Dom India is adherent of the doctrine of intemational law and Indian law a law prevails over international law in mean that Indian courts decide m: atters with respect to which 0 make laws in including the matters of international only the Union government is competent to perform spect of India’s international affairs. estic Jurisdiction ns that Indian courts consider al domains and Indian However, that doesn’t ard to the prevalent e functions in re: dualism." It meat s two independent leg case of conflict." atters in complete disreg: POS Ss 3 Aicle 37 ofthe Constitution of In Entry 10 of List I of Seventh Schedule Ent Ey Enuy Eatry aeeeeS or the Constitution of India 11 of List I of Seventh Schedule of the Constitution ef a aot Lat fof Seventh Schedule of the Constinien op In 1B of List lof Seventh Schedule of the Constitution of nt f the Constitution 7 1"(a904) 10 SCC 201 at pars 490. 14 of List I of Seventh Schedule 0! ies Ltd, Resoram aust Seeithe case of ‘State of West. Bengal v- See the case of Jolly Verghese v. Bank af Col” (1980)hy “STM S Of international la in view of obligation fi “ee wt law. On the contrary, oo impog, Atticle 51(¢) of the Constitution, the Indian’courts have, as fas.as Possibig due Consideration to international law while deciding the municipal Cases,” Biv, ictinct ds for giving ec _ The courts have adopted two di ne raat by interpret’ ae sue Ttational Law in domestic jurid Seed by incorponset™t Statutes in Consonance with the internationa ‘ating N International |, aw in domestic law. 5 () Interpretation of Statutes in Consonance with International Lay a Stic statutes s The Indian courts have consistent eld ete aoe ma ta 88 Possible, be interpreted in cons . aE ; contin Sine This well-established aa of cote ARIE en n interpretation of Constitution. Thus, in the and eee anand at ¥. State of Kerala (1973), the Supreme Cou bald eee ve Af Arti esr the directive principles, this court must imerpye ae Behe light a tion Not intractable, which is after all a muni ye ‘eh ens : Unig Nations Charter and the solemn declaration subsc i is clear and manifestly conflicts With if the statutory language is c u i fs saat then, until the municipal law is amended, the Courts are ton fo ive effect to the municipal law and not to the international law. iti course to international law was taken only in cases Where ‘iin as ve eae and the language was open to more than on construction.” However, in modern times, the courts have adopted 2 ibe approach, especially in matters Pertaining to protection of fundamental Tights aj environment, and have often taken recourse to international law to Vishakha v. State of Rajasthan,” the Supreme Court held “any in convention not inconsistent with the fundamental rights and in harm spirit may be read into those provisions to enlarge the meaning thereof, to promote the object of the constitutional guarantee”. lOny with i, and conten (ii) Incorporation of International Law in Absence of Domestic Statutes Although the Indian courts have always resorted to international law in matters of interpretation of domest estic laws, incorporation of international law in absence of any domestic law Was, at best, rare. In fact, in some of the Cases, the Supreme Court expressed the View that India had accepted the doctrine of transformatiot & Waseem, 47. See the case of Jolly Verghese y, i Bank of Cochin, (1980) 2 SCC 358 at Para 6, See also tt zd cose coment Of Justice H.R, Khanna in the case Of A.D.M. Jabalpur v, Shivakant Shu See he GF V.0. Tractoroexpo ty, Te 49. See the Diss! port y, Te ek Co. (1969) 3 SCC 562 at para 15, ; Siu, agg) 8 cogent Of Justice H.R, Khanna in the case of A.D.M. Jabalpur v. Shivakat Indi. Ai Ga CSG 7: See also te res Cue eople's Union for Civil Liberties » Union Union of in dia), (1 995) 3 SCL ae Industries Case (Consumer Education & Research Centt0 MLTR Be . . . Ore Mae aT eR 7 meant that international COnVention, aa = rm wil h the domestic legislation Was intro eo eee ase wf yer, i the case of Maganbhaj Ishi ows after considering the In AN cons 70) constitution m; NO provie; . (#9 eur constitution Provisiog sei ao Supreme Court re ary into re the Yet teaty in ing KiN8 legisation 4 condition of it of the Union js a Cither of wy, chive 71 the give power 0 i Vested in the pat” OF pewe, ‘The cout” with the constituti " Ne President and ig oy ues Th eo ance atiament ue pe Power to legislate in M4 ble in ae vith the Shae ler Ents 10 and 1d of Ligh ne Of treaties ss i, 0 . Ist si gale erates 1 restrict the saat Authority ig necessary wi tl fee Som ment OP% Pataatiise © rights of cig ‘or othent en the treaty or wie tate. If the rights of the citizens oy others SOF modifies the laws a islati * Which are justiciable 4 no legislative measure is neodey cot Co he able are: not ected, ‘© give effect to the 4 c a ple i Pa aot held that Under Indian constitution ne we gational ae Not adversely atfeoy the rights of th led a ic donot modify the domestic laws of tre Stat mene ace of domestic legislation to tha eh e given effet to even in S Were not eff; feet , nice Ye on the duced tg that effeey sO" "eit own force Warbhai p, i H Patel y, tituiona % Union cheme, 1 for maki Heme, th "Of India in exercise of their Constitutional powers er the fundamental rights of the resin ses tinder Articles 32 or 226 10 second landmark judgment in this regard was th conpany of India Ltd, h Birendra Bahadur Pandey (1984). In this case, the supreme Court expressly endorsed the doctrine of incorporation by holding, ‘there can be no question that nations must march with the international community and the municipal law must respect rules of international law even as nations respect international opinion. The comity of national requires that rules of international law may be accommodated in the municipal law even without aapress legislative sanction provided they do not c " run into conflict with Acts of Parliament... The doctrine of incorporation also Tecognises the position that the rules of international law incorporated into national law and considered to be partof the national law, unless they are in conflict with an Act of Parliament”, Since then, the Supreme Court has Consistently applied the doctrine of incorporation on a number of occasions to incorporate the rules of international law in the Indian domestic law, primarily in order to enforce and elucidate fundamental rights and environmental laws. Thus, in the case of Vishakha v. State of Rajasthan, the Supreme Court invoked the constitutional powers of the Court under Article 32 to enforce the findamental right of gender equality by holding “In absence of domestic law “ccupying the field, to formulate the effective measures to check...the contents of fo. 5 Sethe case of V, 1969) 3 SCC 562 at para 16; See also the 0. Tractoroexport v. Tarapore & Co. ( P 2 Reo dolly Verghese v, Bank Cochin (1980) 2 SCC 360 at para 6. - het (890) 3 sce 400, ‘This judgment is cited with approval in the case of Union of India v. ‘Azadi B ‘Andolan, (2004) 10 SCC 1 at para. the c i , n 6 SCC 241 at para 7. % ang oe elisha. Save of Rajasthan, (1997 par Ie case of Gramophoneare significant for the Purpose quality in the Constitution”. 4 , . - IS international conventions and norm: e i i ntee of gender i —Tierpretation, of the euatth : international conventional rules but also The rules incorporated are not ae ast ance, in the case of nVellore Citize internati mary rules. For ins e Court, while apply; | Welfare Forum Unon of India,” the ae ‘in case before it, nels s customary principle of sustainable developm tomary international lay mt these principles are accepted as part ai he pars of the domestic law, rs “e would be no difficulty in accepting 10" © Ties of customary internay; uy) : ion almost an accepted proposition of law tha be deemed to h ral law which are not eae to the municipal law shall AVE een | "en, ts a incorporated in the domestic law and shall be. followed by the courts of law” Overview of various judicial decisions over past two decades indicates yy, there is definite shift towards the doctrine of incorporation in, the matters application of international law within domestic jurisdiction.” However, , | extent to which the Indian courts are willing to incorporate the international lay. in absence of supportive legislative enactments is still uncertain. For Instance, jy the case of People’s Union for Civil Liberties v. Union of Indi ; the Supreme Court expressed doubt as to whether an international treaty, not incorporated j, domestic law by the suitable legislation could operate as a direct Source of individual rights and obligations under domestic law. Uh Civil rij ci Haiberties ¥. Union of ‘an Investment and