NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

Public International Law

The Relation between Municipal Law and International Law: A

look at the Indian Judicial Interpretation

Thirteenth Trimester

Submitted by:

Sanchit Asthana

2011 BALLB 87

DECLARATION

The text reported in the project is the outcome of my own efforts and no part of this

report has been copied in any unauthorised manner and no part has been incorporated

without due acknowledgement.

Sanchit Asthana

INTRODUCTION

The conflict between domestic law and international law is a centuries old debate. At the

very outset, the question that leads the conflict is whether international law is actually

“law”. This has been a question of jurisprudence that has baffled jurists and legal

scholars. It is in the treatment of international law by domestic courts - a concrete

practical setting - and the question is contextual in form: is a particular type of

international law, law for a particular purpose in a particular domestic legal system?

Accounts of how domestic courts do, or should, treat international law are not presented

as answers to this question, but of course they are propositions about whether it counts as

law and if not, then what exactly its nature is. 1

The issue of the relation between domestic law and international law has been looked at

from various perspectives. However, one area where the debate is relatively fresher is the

conflict of laws. Therefore, domestic law and international law are seen from the

perspective of a conflict of laws. In a nutshell, international law is the law which usually

applies to the conflict between nations or even a simple matter concerning the relations

between nations (whether or not it is a dispute). Municipal or domestic law is the law

which applies within the territory of states, pertaining to different spheres of the law like

civil law, criminal law, corporate laws etc.

Earlier, the debate regarding the relationship between the two was more of a theoretical

debate. However, now it has assumed practical significance as well. However, over the

years the problem has assumed practical significance as well. This is because courts have

difficulty arriving at decisions where there is a conflict between domestic and

international law. Sometimes the courts are at a dead end or stalemate because they do

not know whether to apply international law or domestic law.

A famous scholar, Anzilotti, also talks about the relation between international law and

municipal law. In his various works, he has talked about the dichotomy between positive

law and natural law. According to him, the relation between municipal law and

International Law can be explained along the same lines. 1 Karen Knop, Ralf Michaels, and Annelise Riles, International Law in Domestic Courts: A Conflict of Laws Approach, Cornell Law Faculty Working Papers, available

His main concern appears to be that of clearing international law from the undue

influence of concepts prevailing in municipal law. In his major study on the subject

(Diritto internazionale nei giudizi intemi), which was published in 1905, he traced a

distinction between international law and municipal law on the following lines: First of

all, they are enacted by different wills: international law stems from the collective will of

several States, while rules of municipal law are always the expression of the will of a

State, or better of the will belonging to a State, if one does not wish to prejudge the well

known controversy on the binding nature of custom, which many jurists consider as law

which is not State law, while nobody doubts that it belongs to municipal law. Secondly,

the relations which are respectively governed are different: norms of international law

govern relations between coordinated and autonomous entities, which are linked within a

community lacking a legal organization, and thus these norms are completely

independent from the existence of any power over these entities, while norms of

municipal law govern relations within a society which is legally organized and therefore

they implicitly contain an idea of supremacy and subordination - an imperium of the

collective entity over the members of society.2 He was thus of the clear view that the two

function within their independent sphere, which is the belief of the propounders of the

dualist theory.

THE MONIST AND DUALIST THEORIES

There are two mains theories in this regard. There is the dualist theory and the monoist

theory. We will discuss these individually and then understand what system India is

following.

Dualist theory: According to this theory, the International Law and Municipal Law of a

state are two distinct things. These two laws are independent and function in two

completely different spheres. eing separate systems, International Law would not as such

form part of the internal law of a State to the extent that in particular instance rules of

International Law may apply within a State they do so by -virtue of their adoption by the

internal law of the State, and apply as part of that internal law and not as International

Law. In such a case, the question of supremacy of one over the other does not really arise.

2 Scritti di diritto intemazionale pubblico, supra note 9, 1,281, at 319-320

In simple words, this means that if the domestic laws of a state are framed in order to

ensure that the domestic law complies with a certain international law; or if the state

adopts a treaty or signs a convention which requires it to enact or amend a certain

legislation, only then can international law apply within the territory of the state. And

again, it applies by virtue of the domestic legislation.

In other words, though both the systems are distinct, the application of international law

by way of transformation or incorporation in the municipal law is only possible because

the municipal law conditions its validity and operation within the municipal sphere and

thus the municipal law gains supremacy over the international law. Therefore, in case

there is an inconsistency between the two, municipal law will prevail. In courts and

tribunals, even when the parties have a choice of law, the municipal law will prevail.

Dualist view was developed by a prominent German scholar Triepel in 1899. For him,

International Law and domestic or municipal law existed on separate planes, the former

governing international relations, the latter relations between individuals and between the

individual and the State.

Therefore, to conclude, this theory states that municipal law is applied to the dispute

within a state pertaining to municipal or domestic matters and functions separately from

the international law.

Monist Theory: This theory gained importance in the eighteenth century. It was

propounded by two German scholars Moser (1701-85) and Martens (1756-1821).

According to this doctrine there exists only one set of legal system, i.e., the domestic

legal order. According to this particular view, International law is not a distinct body of

law. There is no need to distinguish it from the municipal laws of the states since the

states themselves have made the rules of international law. Essentially, this view seems to

do away with the incorporation of international law in the municipal or domestic laws of

a country. In the opinion of its theorists, the two together form a single legal order.

International Law is therefore indistinguishable from the internal law of States and is of

significance only as part of the universal legal order. Various writers interpret the

universal order different ways. These differences stem from the general theoretical

concept of International Law as a universal legal system.

 

DOES INTERNATIONAL LAW HAVE A PLACE IN THE DOMESTIC LEGAL SYSTEMS?

Before we go any further, it is important to understand that the effectiveness of

international law also depends on the will of the states. It is evident that unless the states

explicitly understand that they are under an obligation to adhere to certain international

norms, they will not feel it is their duty to do so. The modern day principles of

international law have transgressed boundaries and moved against the stonewall of

sovereignty. The traditional notions of the relationship between International law and

Municipal law have undergone many changes. One of the most important ways that this

has been done is that the Indian Constitution also has an article relating to international

law and puts an obligation on the state to adhere to the same through changes in the

domestic legislation. A more implicit way is the judicial interpretation of international

treaties and statutes, and the often quoted principles of International law (conventions,

treaties etc.) in the judgments.

There are two major principles in this regard, the doctrine of incorporation and the

doctrine of transformation. In the former, it is said that international law rules can be

automatically integrated into the rules of domestic law so far as they are not in conflict

with the rules of domestic (municipal) law. The latter propagates that the rules of

international law are not considered a part of the rules of domestic law until they are

specifically and explicitly incorporated in the same.

In the English courts, many judgments given by Lord Denning talk about the origin and

history of the aforementioned views on the relation between international and municipal

law. He observed, in the case of Bavot v. Barbuit, that Lord Talbot had pointed out that

“the law of nations in its full extent was a part of the law of England”. This view was also

followed by jurists like Lord Mansfield and William Blackstone. The theory of

transformation was discussed by Lord Atkins in Chung Chi Cheung v. R3 where he said

that “so far at any rate as the courts of this country are concerned, international law has

no validity save in so far as its principles are accepted and adopted by our own domestic

3 (1938) 4 All ER 768 at 790

law”. In the case of Thakrar v. Secretary for the Home Department4, Lord Denning

subscribed to the doctrine of transformation. However, in a later case he changed his

stand and said that he was of the view that the doctrine of incorporation was indeed

correct.5

THE INDIAN JUDICIAL PERSPECTIVE

The Indian Judiciary has often dealt with the debate about the supremacy between

International Law and Domestic Law. Indian Constitution under Article 51 provides the

general obligations of India to the World by stating that: The State shall endeavour to:

(a) to promote international peace and security

(b) maintain just and honourable relations between nations

(c) foster respect for International Law and treaty obligations in the dealings of organised

peoples with one another

(d) encourage settlement of international disputes by arbitration.

A criticism of the studies in International Law in India is that there is insufficient

research done on the relations between the various kingdoms within India. Scholars are of

the belief that there is unsatisfactory work done as regards the aforementioned. The only

concrete research is on the relation between British India and the rest of the world, as

well as the influences of external relations between nations on British India.

In Shri Krishna Sharma v. The State of West Bengal, the Calcutta High Court stated that

the Indian Courts would apply rules of internal law which includes (a) the Constitution of

India, (b) the Statute enacted by the Parliament of India, and (c) the Statutes enacted by

the State Legislatures. The Court held:

“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 it into conflict

with the rights and obligations deductible from rules of internal law. If such rules

4 (1974) 2 All ER 261 at 266 5 Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria (1977) 1 All ER 881

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 really irreconcilable.”

Another interesting case is the case of Gramophone Recording Company v. Birendra

Bahadur Pandey6 where Justice Chinappa Reddy said that the nations must match with

the international community and municipal law must respect the rules of international law

even as nations respect the international opinion. He also quoted the doctrine of

incorporation of substantiate his opinion. He also said that in case the two areas of law

are in conflict, international law must prevail.

The Indian courts are also of the view that the Parliament does not lay down a law which

may potentially conflict with the rules of international law. However, in case there is a

conflict between international law and municipal law, the main thing to be kept in mind is

that both statutes (domestic and international) must be clear in their meaning. Only then

can we decide which one is to prevail.7

The Gramophone case was important because one of the principles that it laid down

clearly was that domestic courts could not adjudicate on subjects of international law. So

far as the issue of treaty interpretation goes, the Supreme Court had said that a treaty

would not bind the state unless the same has been ratified by the state. However, despite

this there could in implicit ratification as well because of certain actions performed by the

state parties.8 As to treaties, it is submitted that they shall not be binding upon Indian

Courts unless they have been implemented by legislation. The above view is based on

Article 253 of the Constitution which says that Parliament has power to make any law for

the whole or any part of the territory of India for implementing any treaty, agreement or

convention with any country or countries or any decision made at any international

conference, association or other body.

6 (1984) 2 SCC 534 7 V/o Tractorexport Moscow v. M/s Tarapore & Co. & Anr. (1970) 3 SCR 53, it discussed Article 253 of the Indian Constitution which gives the Parliament the Supreme Power to pass legislation with the country. It is however, silent on the treaty making power of the Parliament. 8 UOI v. Sukumar Sengupta (1990) Supp. SCC 545

In Vishakha v. State of Rajasthan9, the Supreme Court held that the international

conventions and norms are to be read into them in the absence of enacted domestic law

occupying the field when there is no inconsistency between them. In the above case, a

writ petition was filed by certain social activists and NGOs for the realization of the true

concept of gender equality and to prevent sexual harassment of working women in all

work places, through judicial process to fill the vacuum in existing legislation. Reference

was given to Article 11 of the Convention on the Elimination of All Forms of

Discrimination against Women, which prohibits discrimination against women in the

field of employment i.e., equality in employment.

It was observed by the Court that equality in employment can be seriously impaired when

women are subjected to gender specific violence, such as sexual harassment in the work

place. Since in India there is no law to formulate effective measures to check the evil of

sexual harassment of working women at all work places, the Court held that the contents

of international conventions and norms are significant for the purpose of interpretation of

the guarantee of gender equality, right to work with human dignity in Articles 14, 15,

19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit

therein.

Conclusion

We can see that the Indian view on the relationship between Municipal Law and

International Law has been very flexible and has evolved through the course of various

judicial pronouncements. Judges who have adjudicated these cases are also of different

views, some subscribing to the transformation theory and some subscribing to the

incorporation theory. However, something which has been consistent is that there has

been constant emphasis on the need to adhere to the international norms and also

conventions and treaties.

This perhaps arises from the concept of state responsibility. This is because India has

been under British rules for centuries; and of the aims was to integrate itself as a nation

state in the international community once it was independent. For this, it was important to

follows the rules of international law and show cooperation amongst the other nation

9 AIR 1997 SC 3011

states. This is why India has been such an active member of the United Nations and the

agencies of the UN in India are constantly working to ensure the betterment of South-

East Asian countries in terms of society and culture.

However, one cannot say very clearly whether India follows the monist or dualist view. I

am of the opinion that there is a mixed stand. Even when the concept of International

Law and evolving and was in its nascent stage in the Indian Courts, judges were of

differing opinions on the same. To a large extent our country has been influenced by the

law in England and the United States, which is also a common law country.

The main aim behind the incorporation of the international law has been to ensure that

India is a part of the international community. India has constantly tried to incorporate

the international law in its domestic legal system. Once again, this does not very clearly

show whether India is of the monist or dualist view. For instance, one surprising fact is

that India has not ratified the convention against child labour. However, it has

incorporated in the Constitution articles which prohibit the same. This goes to show that

India considers that the international law and the domestic law are two distinct legal

systems and function in independent sphere. However, an analysis of cases in the course

of my research shows that India has also ensured the conformity of its domestic law with

the international law, whether by incorporation or by transformation. This shows the

affinity towards a view which leans towards the monist theory.

Sources

Books

Bimanl N. Patel, India and International Law, Martinus Nijhoff Publications, Boston

(2008)

Christine Gray, International Law and the Use of Force, 3rd Edition, Oxford University

Press

Ian Brownlie, Basic Documents in International Law, Oxford University Press

Ian Brownlie, The Rule of Law in International Affairs, Martinus Nijhoff Publishers

J. Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to

Other Rules of International Law (2003)

Malcolm N. Shaw, International Law, Fifth Edition, Cambridge University Press

S.A. Alexandrov, Self-Defence Against the Use of Force in International Law (1996)

Articles

AFM Maniruzzaman, State Contracts in Contemporary International Law: Monist versus

Dualist Controversies, European Journal of International Law 2001 Vol. 12 No. 2 309-

328 available at http://www.ejil.org/pdfs/12/2/1519.pdf

Giorgio Gaja, Positivism and Dualism in Dionisio Ansilotti, 3 European Journal of

International Law, 1992 p. 123 available at http://www.ejil.org/pdfs/3/1/1170.pdf

International Law in India, The International and Comparative Law Quarterly, Vol. 1,

No. 3, Jul., 1952