Relationship Between International Law and Municipal Law:
International law is applied in the relations of the states and other subjects of international law, national or state law which is called municipal law is applied within a state to the individuals and corporate entities which are the bearers of rights and duties there under. Originally, the relationship between the two laws was a matter of theoretical importance i.e., whether international law and municipal law are parts of a universal legal order or they form two distinct systems of law. But at present the question has acquired practical significance as well. When there exists a conflict between the rules of international law and municipal law, court is faced with the difficulty of arriving at the decision. Before an international tribunal, the question is one of primacy – whether international law takes primacy over municipal law or vice versa. If the conflict arises before a municipal court, the answer depends on how far the constitutional law of the state allows international law to be applied directly by the courts. Almost every case, in a municipal court, in which a rule of international law is asserted to govern, the decision raises the problem. For instance, diplomatic immunity granted by international law would become meaningless unless they are recognised by municipal law. Further, customary rules of extradition are interpreted and applied by municipal courts only. In fact, international law cannot work without the cooperation and support of national legal system. Thus, it is in the municipal courts and increasing part of international law is enforced.
The above has hesitated to ascertain the relationship of the two systems of law, and the primacy of the two laws, when they contradict each other. The views of the jurist on the question of relationship of international law are diverted which have led to the emergence of different theories. Prominent among these are as follow:
According to dualistic theory, international law and municipal laws of the several states are two distinct, separate and self-contained legal systems. Being separate systems, international law would not as such form part of the internal laws of the state: to the extent that in particular rules of international law may apply within a state they do so by virtue of their adoption by the internal laws of the state, and apply as part of that internal law and not as international. Such a view avoids any question of the supremacy of the one system of law over the other since they share no common field of application: each is supreme in its sphere.
There are points of differences between the two systems, and therefore they are applied distinctly in different areas. Anzilotti states that the two systems are so distinct that no conflicts between them are possible. However, it does not mean that the rules of international law can never be applied by the municipal courts. Municipal courts would certainly apply them as and when rules of international law are considered to be part of the law of the land. It can occur only when international law, that is customary rules as well as treaty rules become the rules of municipal law through the process of specific adoption, which means that the rule of international law cannot be enforced within the realm of the state unless that state adopt such a law as an integral part of its own system. As far as treaty rules are concerned, there must be a transformation of the treaty into state law. So long transformation of international law does not take place in the municipal law, former cannot be applied by the municipal courts. Transformation of international law to municipal law may take place according to the constitutional provision of the state and therefore the procedure may be different from state to state. Specific adoption and transformation are therefore the theories concerning the application of the international law within the municipal sphere.
According to the dualists, municipal courts shall apply municipal law in a case of a conflict between international law and municipal law. Thus, municipal law shall have primacy over international law according to this view. Further, when a case comes before an International Court or tribunal, it applies international law rather than municipal law in case of a conflict between them. In the Greco-Bulgarian communities case, the permanent Court of International Justice stated that it is generally accepted principle of international law that in relation between powers who are contracting parties to the treaty, the provisions of municipal law cannot prevail over those of the treaty.
Criticism of Dualistic Theory:
Dualistic theory is subjected to many criticisms. Firstly, the view that international law and municipal law differ from each other implies that international law cannot be a part of principal law and can never operate as the law of the land unless they are specifically adopted or transformed through municipal custom or statutory enactment. It is not correct because there are certain fundamental principles of international law which are binding upon the state, even against its own will. Secondly, it is not correct to say that international law regulates the relations of states only. At present, it regulates certain activities of individuals as well. If individuals commit certain wrongs, they can be punished in accordance with the rules of international law i.e., war crimes. Thirdly, no doubt, pacta sunt servanda is an important principle of international law, but it cannot be said that it is the only principle on which international law rests. There are certain rules which are legally binding on a state.
According to this doctrine there exist only one set of legal system, i.e., domestic legal order. It has been denied by the exponents of this theory that international law is distinct and autonomous body of law. It followed that there was obviously no need for international rules to be incorporated into municipal legislation; since then have been made by the states themselves.
According to monistic theory, municipal law as well as international law are parts of one universal legal system serving the needs of human community in one way or the other. 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 in different ways. These differences steam from the general theoretical concept of international law as a universal legal system. They both are therefore species of genus-law. Monism maintains that all laws are made for individuals only. While municipal laws binding on them directly; international law is binding on them through states. Since both the laws are meant to solve the problems of human beings in different areas, they both are related to each other. They believe that the whole system is one unified branch in which international law operates as a part. Neither municipal law nor international law is therefore above the system nor is separated from the system. The result is that international rules can be applied as such by municipal courts without any need for transformation.
Exponents of monistic theory rejected the alleged differences between the two systems regarding sources, substance and subjects as laid down by the dualists. According to them, subjects of both the systems of law are ultimately individuals. According to them since a state consists of individuals, rules of international law ultimately binding on them only like municipal law, which concerns with the conduct and welfare of individuals. Secondly, in both the spheres the law is essentially a command binding upon the subject of law independently of their will. Thirdly, monistic theory maintains that international law and multiple law, far from being essentially different, must be regarded as manifestations of a single conception of law. Monistic laid down that international law is superior even within the municipal spheres.
Conflict between international law and municipal law may arise in a variety of ways. For instance, creation of a new municipal legislation may be found contrary to the existing customary rules of international law or to some provisions of an existing treaty, or to the creation of a new rule of international law may be found contrary to the existing municipal law. Such a situation may arise very often, put the judges in an awkward position when they are required to pronounce judgement in a given case. Exponents of harmonisation theory tend to resolve such difficult situation by holding altogether a different view. O’çonnell who is the main architect of the above view says that individuals do not live their lives exclusively either in the legal order of the state or in the international legal order. They fall within the jurisdiction of both because their lives are lived in both. Thus both the legal orders are meant to solve the problems of individuals who live there. International law and municipal law though autonomous in the sense that they are directed to a specific and to some extent, an exclusive area of human conduct are harmonious in their totality because they aim to a basic human good. Both the system should therefore be harmonious and should not allow to exist contradictory rules. However, if contradictory rules in fact exist, it does not follow that one of them must be void. It is one of the principal functions of juristic reasoning to eliminate contradiction by harmonising the points of collision, not by pretending that they do not exist, nor by crushing the one with the other. Hence, judges of all the courts – municipal as well as international courts should aim at harmonising the systems rather than to treat one system superior to the other system. The theory of harmonisation assumes that international law, as a rule of human behaviour, forms part of municipal law, and therefore available to a municipal judge. However in the rare instance of conflict between them the two systems; the theory acknowledges that he is obliged by his jurisdictional rules. According to this theory neither municipal law nor international law has supremacy over the other.