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Q. Explain the relationship between International Law and Municipal Law. International Law is the law which governs the Relations of sovereign independent States inter se Municipal law or State law or national law is the law of a State or a country and in that respect is opposed to International Law which consists of rules which civilized States consider as binding upon them in their mutual relations. Kelsen observes that national law regulates the behavior of individuals International law the behavior of States or as it is put whereas national law is concerned with the international relations the so called domestic aairs of the State. International Law is concerned with the eternal relations of the State its foreign aairs. Legislature and court systems are dierent on the international and municipal levels. !here 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" ma#es all countries e$ual. %nforcement is a ma&or dierence between municipal and international law. law. 'he municipal courts have a law enforcement arm which helps re$uire those it determines to follow the rules" and if they do not they are re$uired to attend court. 'he international court system has no enforcement and must rely on the cooperation of other countries for enforcement. 'here is a divergence of opinion opinion on the $uestion as to whether International Law and Municipal Law on the various national laws can be said to form a unity being manifestations of a single conception of law or whether International Law constitutes an independent system of law essentially dierent from the
Municipal Law. 'he former theory is called monistic and the latter dualistic.
Monistic Theory: Monists assume that the internal and international legal systems form a unity. (oth national legal rules and international rules that a state has accepted" for eample by way of a treaty" determine whether actions are legal or illegal. In most monist states" a distinction between international law in the form of treaties" and other international law" e.g. &us cogens is made. International law does not need to be translated into national law. 'he act of ratifying the international law immediately incorporates the law into national law. International law can be directly applied by a national &udge" and can be directly invo#ed by citizens" &ust as if it were national law. ) &udge can declare a national rule invalid if it contradicts international rules because" in some states" the latter have priority. In other states" li#e in *ermany" treaties have the same eect as legislation" and by the principle of le posterior" only ta#e precedence over national legislation enacted prior to their rati+cation. In its most pure form" monism dictates that national law that contradicts international law is null and void" even if it predates international law" and even if it is the constitution.It maintains that the sub&ect of the two systems of law namely" International Law and Municipal Law are essentially one in as much as the former regulates the conduct of States" while the latter of individuals. )ccording to this view law is essentially a command binding upon the sub&ects of the law independent of their will which is one case is the States and in the other individuals. )ccording to it International Law and Municipal Law are two phases of one and the same thing. 'he former although directly addressed to the States as corporate bodies is as well applicable to individuals for States are only groups of individuals. Dualistic theory: ,ualists emphasize the dierence between
national and international law" and re$uire the translation of the latter into the former. !ithout this translation" international law does not eist as law. International law has to be national law as well" or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law eplicitly incorporating the treaty" then it violates international law. (ut one cannot claim that the treaty has become part of national law. -itizens cannot rely on it and &udges cannot apply it. ational laws that contradict it remain in force. )ccording to dualists" national &udges never apply international law" only international law that has been translated into national law. )ccording to the dualist view the systems of International Law and Municipal Law are separate and self contained to the etent to which rules of the one are not epressly or tacitly received into the other system. In the +rst place they dier as regards their sources. 'he sources of Municipal Law are customs grown up within the boundaries of the State concerned and statutes enacted therein while the sources of International Law are customs grown up within the /amily of ations and law ma#ing treaties concluded by its members. In the second place Municipal Laws regulates relations between the individuals under the sway of a State or between the individuals and the State while International Law regulates relations between the member States of the /amily of ations. Lastly there is a dierence with regard to the substance of the law in as much as Municipal Law is a law of the sovereign over individuals while International Law is a law between sovereign State which is arrived at an agreement among them. 'he latter is therefore a wea# law. (esides the above two theories" Star#e ma#es reference to two other theories namely" the 'ransformation 'heory and ,elegation 'heory.
Transformation Theory: )ccording to this theory it is the transformation of the treaty into national legislation which alone validates the etension to individuals of the rules set out in international agreements. 'he transformation is not merely a formal but a substantial re$uirement. International Law according to this theory cannot +nd place in the national or Municipal Law unless the latter allows its machinery to be used for that purpose. 'his theory is fallacious in several respects. In the +rst place its premise that International Law and Municipal Law are two distinct systems is incorrect. In the second place the second premise that International Law binds States only whereas municipal law applies to individuals is also incorrect for International Law is the sum of the rules which have been accepted by civilized states as determining their conduct towards each other and towards each others sub&ects. In the third place the theory regards the transformation of treaties into national law for their enforcement. 'his is not true in all cases for the practice of transforming treaties into national legislation is not uniform in all the countries. )nd this is certainly not true in the case of law ma#ing treaties.
Delegation Theory: )ccording to this theory there is the delegation of a right to every State to decide for itself when the provisions of a treaty or convention are to come into eect and in what manner they are to be incorporated in the law of the land or municipal law. 'here is no need of transformation of a treaty into national law but the act is merely an etension of one single act. 'he delegation theory is incomplete for it does not satisfactorily meet the main argument of the transformation theory. It assumes the primacy of international legal order but fails to eplain the relations eisting between municipal and international laws. It is settled by the leading %nglish and )merican decisions that International Law forms part of the municipal law of those
countries. 'he 0nited States has unambiguously applied the doctrine that International Law is part of the law of the land. )ll international conventions rati+ed by the 0S) and such customary International Law as has received the assent of the 0nited States are binding upon )merican -ourts even if they may be contrary to the statutory provisions. 'here is a presumption in cases of con1ict that the 0nited States -ongress did not intend to overrule International Law.
osition in India In India" S- has held in several cases such as 2isha#ha vs State of Ra&asthan" Randhir vs 0nion of India" 0nni#rishnan vs State of Karnata#a" that domestic laws of India" including the constitution are not to be read as derogatory to International law. )n eort must be made to read the domestic law as being in harmony with the international law in case of any ambiguity. )t the same time" the constitution is still the supreme law of the land and in case of any directly con1ict the constitution will prevail.