This article has been written by Chandan Kumar Pradhan, from KIIT School of Law, Odisha. This article talks about the relation between International and Municipal Law.
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.
Monistic Theory: Kelsen’s Grund norm theory and Lauterpacht’s view
Why is Monistic Theory taken as the one power legal system?
Basically, ‘Monistic’ means the unity of the legal systems. This view believes that there is no difference between Municipal law and International Law. The people who follow this theory think that the science of law and the body of law is a single law that is International Law itself.
In the Science of Law, there are two branches from a single body: the National Law and the International Law. This theory defines that International Law is superior to Municipal Law. Whatever legal work we deal with, whether National or International, all are meant to be dealt with by International Law itself.
What is the opinion of Lauterpacht on Monistic Theory?
According to Lauterpacht, Nation exists on its own. It is the individuals who are the fundamental components of society. The rights and obligations of the Municipal legal system can be transferred to the International legal system. For eg: Human Rights are available in national as well as in international legal systems.
National and International Law are not equivalent to each other, in the sense that rights and obligations under both National and International systems deliver the same purpose which is to promote the interests of the people.
How did Kelsen get some original documents on Monistic theory?
The students who were with Kelsen while he was researching this theory found a hypothesis solution. After detailed analysis, Kelsen got the documents which were necessary for the theory’s confirmation. Kelsen explains that monistic theory states that international law, as well as various state legal systems, constitute a unified system of law.
The idea he points out is that “one can conceive of international law together with the state legal systems as a unified system of norms in exactly the same way as one is accustomed to regarding the state legal system as a unity.”
Those who do not follow this theory allege that Municipal Law is not in accordance with International Law and it appears that it will be more difficult to maintain the new laws due to the actual historical circumstances.
What is the Overall Opinion on this Monistic Theory?
Finally, according to Kelsen, he is the source of the final legal force of all laws based on the basic norms of International Law. His theory leads to the conclusion that all norms of International Law are superior to Municipal law. Municipal Laws that are incompatible with International Law are automatically recognized as invalid and do not apply.
Dualist Theory: Quote on Triepel
What opinions were given by H. Triepel?
A dualistic view of the relationship between Municipal and International Law is presented by H. Triepel in a more rigorous form in his textbook “ Völkerrecht und Landesrecht”.
What are some basic regulations for Dualist Theory?
There are no rules for transferring rights and Obligations from one system to another because the individuals are residents of a country and are subject to the National Law. In other words, there are various theories and subjects about National and International Laws. There are many situations where they come into an argument about which law is higher.
The person who advocates the dualism theory believes that there is no contradiction between Municipal and International Laws and that these provisions do not have the same goal. Internal rules apply only to national borders and cannot violate International Law.
In this situation, the International Law is valid only at the International level. In order to implement the International Law in a State, the State must submit them through a legal notice that facilitates the application. In both cases, people will face the nationalization of the convention at the International and National levels.
Dualism teaches that National and International Law are two separate legal systems with the same International responsibility. These two systems have different legal sources. National law is used for issues inside a State and International Law is used for solving problems between two States.
How has the Dualist Theory been criticized?
Dualism has been widely criticized.
- Firstly, this view states that International Law and Municipal Law are different from each other as International Law cannot be part of Municipal Law and it also cannot be regarded as absolute state law unless it is explicitly enforced or amended by Municipal Law. This view is not true, because there are certain basic principles of International Law that link the state with its own will.
- Secondly, it is not true that International Law regulates only the relations between countries. It also governs certain personal actions. If people make certain mistakes, they can be punished in accordance with International Law eg: War Crimes.
- Thirdly, “Pacta Sunt Servanda”, which means agreement must be kept, is undoubtedly an important principle of International Law, but not the only principle on which it is based. There are certain rules which are legally binding on a state.
Article 38(1) of the Statute of the International Court of Justice (ICJ) provides three International Laws: Treaties, Customs and General Principles. Since the systems of International Law are horizontal and decentralized, the creation of International Laws is much more complicated than the creation of laws in the national systems.
Consent Theory (Common Theory)
The evolution of this theory was given by John Locke and he derived a phrase from the theory that is- “Everyone is equal”. Several problems arose with this including treaties and customs not being the only sources of International Law. All provisions of the International legal system in this theory can be accepted by any party in a contractual agreement.
Article 38(1) of the Tribunal Statutes states that “General Principles of Law recognized by many Civilized Countries” is the source of International Law. It helps Judges to further develop International legal content. This shows us that agreement is not always necessary for International Law to function.
The theory of consent is not fully applicable in the case of treaties. It is not important to have the third country’s consent while having an agreement with any other country. So, in any of the States matter, no third country can interfere.
For Example: In Article 2 of the Charter of the United Nations, this theory justifies that the United Nations should have conditions that the third countries must act in accordance with principles of the UN Charter. So, Consent theory is mainly for the International Peace and Security among the sovereign countries, by which two countries can maintain an acceptable relationship with each other.
Article 103 of the UN Charter says that if there is any problem between the UN members under this Charter and their liability are under other International conventions, then they will be liable under this charter.
The doctrine of the International Law automatically becomes part of Municipal Law, according to which Municipal Law is only part of International Law if recognized by the law or judgement. It is not entirely clear about the rules of customary International Law with regard to international treaties.
Sovereignty has the authority to conclude or ratify treaties to bind Britain under International Law. However, these contracts do not affect Municipal Law until they are adopted by Parliament. But, Judges will sometimes consider the provisions of international treaties. (Eg: human rights issues) in the implementation of community law. European Community Directives have been said to have legal force in the Member States.
Some Cases under the ICJ
South West Africa case (Ethiopia Vs. South Africa)
In this case, on 4th November 1960, Ethiopia and Liberia, former State Members of the League of Nations, opened a separate process for the cases cited in South Africa for the continuation of the League of Nations mandate for South Africa. The Court was asked to explain that South Africa remained a mandate territory, it had violated its obligations under that mandate and therefore was under the legal authority of the United Nations. On 20th May 1961, the Court found that Ethiopia and Liberia had the same interests and joined the trial. South Africa has submitted four initial objections to the jurisdiction of the Court. At the judgement of 21st December 1962, the Court rejected them and confirmed their jurisdiction. After the defence was basically completed within the time limit determined at the request of the parties, the Court held a public hearing from 15th March to 29th November 1965 to hear oral arguments and statements and the second stage of the decision.
The Court decided to reject Ethiopia and Liberia because they could not establish legitimate rights or interests in relation to their claims.
Barcelona Traction case (Belgium vs. Spain)
In this case, the Barcelona Traction Light and Power Company Limited were incorporated in 1911 in Toronto (Canada), where it had its head office.
To build and develop power plants and distribution systems in Spain, the company established a number of subsidiaries, some of which were located in Canada and some in Spain. In 1936, a subsidiary supplied most of Spain’s electricity needs.
According to the Belgian government, a few years after the First World War it became clear that most of Barcelona Traction’s share capital was held by Belgian citizens, but the Spanish government rejected this claim. Barcelona Traction had issued several series of bonds, mainly in the form of sterling. Sterling bonds were served by Barcelona Traction, which was influenced by a subsidiary operating in Spain. In 1936, maintenance of crane bonds in Barcelona was terminated due to the Spanish Civil War.
After this War, Spanish exchange control authority refused to allow the transfer of foreign currency needed to restart services on sterling bonds. When the Belgian government said that the transfer displays that the foreign currencies must be used to pay off debts from actual foreign capital from Spain, they did not confirm the currency exchange.
- Does Belgium have the Jus Standi (right to bring an action) to have diplomatic protection for shareholders of Canadian companies?
- Does Belgium have the rights and jurisdiction to bring Spain to justice for the actions of Canadian companies?
The judgement of the case
The Court decided to reject this case which shows the difference between individuals who are inherently sovereign at the national and international level. The Court ruled in favour of Spain, as Belgium was not responsible for the war occurred in Spain, and diplomatic immunity was not granted to shareholders requiring compensation.
However, a lawsuit may arise if the shareholder is located in Canada and has the correct identity. Therefore, since the country has not been given power, a person cannot take action against one Country. This case is considered as a good benchmark for Governmental requirements.
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.
General principles of International Law
International law is a complex and evolving norm governing interstate relations. International law contains guidelines for the sovereign states, international organizations and some individuals. The range of issues directly addressed by International law covers the areas of human rights, trade, space law and international organizations outside of war, peace and diplomacy.
- Direct and Indirect Discrimination;
- Vulnerable Groups and Non-Discrimination;
- Affirmative Action or Protective Measures for the Most Vulnerable Groups;
- Education To Combat Discrimination.
Article 38(1) of ICJ’s statutes identify three sources of International law:
- Customary International Law
- The General Principles of International Law i.e. jus cogens (Compelling Law)
General legal principles are recognized by civilised people and are defined by many countries and are also defined by the statute of the International Court of Justice as one of the most important sources of International Law. These principles basically deal with International issues that are arisen in any other Country. Any problem arising from International or Municipal Law with regards to these principles can only be solved at the International level.
National and International legal systems run in their own territory without any hypothesis of retaliation with each other. Both systems are essential and commonly supportive and also socialize with each other in an up-to-date context in relation to many issues. It is believed that International Law is higher than Municipal law because Monist theorists believe that International Law can solve any problems which have arisen within any State.
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.
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