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International Law and
Municipal Law
The relationship between International Law and Municipal Law has
been the subject of debate for a very long time. Do International rules make up
a body of Law? Is the International Law autonomous and distinct from
Municipal/National legal system? are the question of much controversy. The
difficulty in answering these questions lies with fact that the factual
background to International Law is different from that of Municipal Law.
Indeed, International Law has developed in a form which is different from that
of Municipal Law. The relation has been categorized traditionally been
characterized from a monist or dualist perspective.
The role of the states and their functions in the contemporary world is
really complex. According to legal theory enumerated by Malcolm Nathan
Shaw, each state is a sovereign state and are equal. In reality, with the
phenomenal growth in communications and consciousness, and with the
constant reminder of global rivalries, not even the most powerful of states can
be entirely sovereign. Interdependence and the closeknit character of
contemporary International commercial and political society ensures that
virtually any action of a state could well have profound repercussions upon the
1
system as a whole and the decisions under consideration by other states.
The Role played by the state within the International system and
concerned with the relationship between the internal legal order of a particular
country and the rules and principles governing the International community as
a whole. Municipal Law governs the Municipal aspects of government and
deals with issues between individuals, and between individuals and the
administrative apparatus, while International Law focuses primarily upon the
3
relations between states.
INTERNATIONAL LAW
L. OPPENHEIM defines International Law as, "Law of Nation or
International Law is the name for the body of customary and conventional
rules which are considered legally binding by civilized states in their relation
with each other, within a community which by common consent of this
4
community shall be enforced by external power".
1
Malcolm N. Shaw QC, International Law, Fifth edition, Cambridge University Press, Page No. 120.
2
Duru, Onyekachi Wisdom Ceazar, International Law Versus Municipal Law: A Case Study Of Six African
Countries; Three Of Which Are Monist And Three Of Which Are Dualist, Electronic copy available at:
http://ssrn.com/abstract=2142977
3
Malcolm N. Shaw QC, International Law, Fifth edition, Cambridge University Press, Page No. 121.
4
The Project Gutenberg EBook of L. OPPENHEIM, International Law, A Treatise, Vol. 1, Peace, Second Edition,
Longmans, Green and Co., Produced by The Online Distributed Proofreading Team at http://www.pgdp.net (This
Public International Law has been defined by J.G. Starke as "that body
of Law which is composed for its greater part of the principles and rules of
conduct which states feel themselves bound to observe, and therefore, do
commonly observe in their relations with each other."
It is worth observing that, while International Law has traditionally
concerned itself with the relations of independent sovereign states,
increasingly, International Law is concerned also with the rules governing
International organizations and the relations between states and individuals.
Nevertheless, it is clear that states remain the primary subjects of International
Law and, in that respect, much of the following discussion will focus on the
role of states in the creation, observance and enforcement of International
5
Law.
6
According to the Black’s Law Dictionary “International Law” is defined as:
The dictionary also states this concept as “public International Law;
Law of nations; Law of nature and nations; jus gentium; jus gentium publicum;
jus inter gentes; foreignrelations Law; interstate Law between states (the
word state in the latter two phrases being equivalent to “nation” or “country”.
Consequently, International Law may be described as the Law or rules that
file was produced from images generously made available by The Internet Archive/American Libraries.),
http://www.gutenberg.org/files/41046/41046h/41046h.htm#Page_8
5
See J. Craig Barker's, Article on MECHANISMS TO CREATE AND SUPPORT CONVENTIONS, TREATIES,
AND OTHER RESPONSES, http://www.eolss.net/eolsssamplechapters/c14/e14401/E14401TXT.aspx
6
B. A. Garner (Ed. in Chief), Black’s Law Dictionary Eight Edition (United States: Thomson West, 2004) .
7
B. A. Garner (Ed. in Chief), Black’s Law Dictionary Eight Edition (United States: Thomson West, 2004) at 835.
regulate the conduct of states and other entities which at anytime are
recognized as being endowed with International personality. International
conventions, whether general or particular, International customs, general
principles of International and internal Law, judicial decisions of International
tribunals and juristic opinion are the materials are regarded as the main sources
8
of International Law.
MUNICIPAL LAW
9
The Black’s Law Dictionary , defines the term “Municipal Law” as:
"The ordinances and other laws applicable within a city, town or other
10
local government entity".
Thus Municipal Law is the acts made by the legislature or the Law
making authority of a state, applicable to that state alone.
Municipal Law governs the Municipal aspects of government and deals
with issues between individuals, and between individuals and the
11
administrative apparatus. In its narrower and more common sense, pertaining
to a local governmental unit, commonly a city or town. In its broader sense,
pertaining to the public or governmental affairs of a state, nation, or of a
people. Relating to a state or nation, particularly when considered as an entity
12
independent of other states or nations.
8
Article 38(1) of the Statue of the International Court of Justice, this is regarded as the standard material and is the
most authoritative provision stating the Sources of Law till date.
9
B. A. Garner (Ed. in Chief), Black’s Law Dictionary Eight Edition (United States: Thomson West, 2004) .
10
B. A. Garner (Ed. in Chief), Black’s Law Dictionary Eight Edition (United States: Thomson West, 2004) at
1043.
11
Malcolm N. Shaw QC, International Law, Fifth edition, Cambridge University Press, Page No. 121.
12
West's Encyclopedia of American Law, edition 2, Ref from
http://legaldictionary.thefreedictionary.com/Municipal
INTERNATIONAL LAW AND MUNICIPAL LAW
In principle, International Law operates only at the International level
and not within Municipal legal systems—a perspective consistent with
positivism, which recognizes International Law and Municipal Law as distinct
and independent systems. Conversely, advocates of natural Law maintain that
Municipal and International Law form a single legal system, an approach
sometimes referred to as monism. Such a system, according to monists, may
arise either out of a unified ethical approach emphasizing universal human
rights or out of a formalistic, hierarchical approach positing the existence of
one fundamental norm underpinning both International Law and Municipal
Law.
13
Duru, Onyekachi Wisdom Ceazar, International Law Versus Municipal Law: A Case Study Of Six African
Countries; Three Of Which Are Monist And Three Of Which Are Dualist, Electronic copy available at:
http://ssrn.com/abstract=2142977
Law, on the other hand, is enforced by a responsible executive unknown to
14
International Law.
The Law of Nations and Municipal Law differ, thirdly, with regard to
the substance of their Law: whereas Municipal Law is a Law of a Sovereign
over individuals subjected to his sway, the Law of Nations is a Law not above,
17
but between Sovereign States, and therefore a weaker Law.
Even though International Law requires a State to carry out its
International obligations, in general, the processes used by a State to carry out
its International obligations will vary for example, from legislative, executive
14
D. N. Palmer and C. H. Perkins, International Relations: The World Community in Transition Third
Revised Edition (India: A.I.T.B.S Publishers & Distributors, 2007) at 274.
15
The Project Gutenberg EBook of L. OPPENHEIM, International Law, A Treatise, Vol. 1, Peace, Second Edition,
Longmans, Green and Co., Produced by The Online Distributed Proofreading Team at http://www.pgdp.net (This
file was produced from images generously made available by The Internet Archive/American Libraries.),
http://www.gutenberg.org/files/41046/41046h/41046h.htm#Page_26
16
ibid.
17
ibid.
and/ or judicial measures. States also follow different practices in
internationalizing treaty norms that is incorporating treaties within the state’s
legal structure so that the provisions can be implemented by state authorities.
In some countries, International (and at times regional) human rights Law
automatically becomes a part of National Law. In other words, as soon as a
state has ratified or acceded to an International agreement, that International
Law becomes National Law. Under such systems treaties are considered to be
selfexecuting. In other countries, International human rights Law does not
automatically form part of the National Law of the ratifying state.
International Law in these countries is not selfexecuting, that is, it does not
18
have the force of Law without the passage of additional National legislation.
MONISM
Monists hold that International Law and State Law share a common
20
originnamely Law. And the scholars and followers of this theory is called
Monists. According to Monism, International Law is directly applicable in the
18
Referred from Nemanjalo Sukalo http://www.academia.edu/1114626/How_International_law_is_incorporated
_into_Municipal _law_and _why_ is_it_important.html.
19
R. F. Oppong, “ReImaging International Law: An Examination of Recent Trends in the Reception of
International Law into National Legal Systems on Africa” (2006) 30(2) International Law Journal 2.
20
I. Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 1979) at 3234.
National legal order. There is no need for any Municipal implementing
legislation; International Law is immediately applicable within National legal
21
systems unlike Dualism, without any incorporation or transformation.
The theory Monism itself has two parts according to Antonio Cassese,
one which says that though the International Law and Municipal Law coexist
and is one and the same, but the Municipal laws principle is put forth as
supreme is called Monism I and another which says though International Law
and Municipal Law coexist and are one and the same, but the International
Law principle are put forth as supreme is called Monism II. Monism I was
developed German scholars, namely Moser, Hegel, Bergbohm, Zorn, Wenzel
between the 18th and 19th centuries. And Monism II is also by German
22
philosopher Kaufmann in 1899.
21
R. F. Oppong, “ReImaging International Law: An Examination of Recent Trends in the Reception of
International Law into National Legal Systems on Africa” (2006) 30(2) International Law Journal 2.
22
Antonio Cassese, Public International Law, Oxford University Press, 2001.
and void, even if it predates International Law, and even if it is the
constitution.
MONISM I
Monism I put forth the idea that supremacy of Municipal (National) Law
in the system. Monism I is of ideology that though both International and
Municipal laws are laws and are applicable, Municipal Law principle are
somewhat superior when compared to International Law. For illustration
purpose, consider Municipal Law as Constitution and International Law as
other laws in a state, thus it is like Constitution (Municipal Law) of a state
having superiority over all other laws(International Law) in a state.
This theory says, there exist only one set of legal system or the doctrine
of legal order and International and Municipal are two branches of a single tree
serving the needs of human community in one way or the other. Both laws
emanate from a unified knowledge of Law and are the species of same
genusLaw.
MONISM II
23
Antonio Cassese, Public International Law, Oxford University Press, 2001.
Monism II slightly different and is the latest and widely accepted theory
of Monism. It emphasis on supremacy of International Law in the system.
Though both International and Municipal laws are laws and are applicable,
Monism II advances the idea that International Law principle are somewhat
superior when compared to Municipal Law. If we take into account the above
illustration, here International Law is like Constitution of a state having
superiority over all other laws (Municipal Law) in a state.
Monism II theory was found by Kaufmann, a German philosopher, in
the year 1899.This theory is born from the assumption of states selfinterest
clashing against common interests of the individuals. Rights and obligations
enumerated in the International Law, accrue to and are imposed on not only
States but also on individuals. Thus the argument of Individual not being the
subject matter has become absolutely absurd now. This theory supports the
superiority of International Law rules over National legal systems.
Immediate applicability of International rules within National legal systems of
states, without need for transformation of those rules from International Law
to National or Municipal legal system. It stresses on the fact that the
International rules, takes precedence over National legislation, and
automatically repeal any National laws contrary to them. This theory got
squashed by the more sophisticated and realistic theory of Triepel (Founder of
the Theory of Dualism). This theory according to Antonio Cassese, looked
24
more like aspiration than a description of reality.
24
Antonio Cassese, Public International Law, Oxford University Press, 2001.
system, embracing all the various legal orders at all levels (i.e.) both
International and National legal system. International Law is at the top of the
pyramid and validates or invalidates all legal acts of any other legal system.
Therefore, Municipal Law must conform to International Law to exist.
Transformation of International Law into Municipal Law is not necessary
25
because they are part of one normative system.
According to Kelsen, Verdoss and Scelle, the subjects of International
Law are not radically different from those of National Law, in both the legal
system, individuals is seen as principal subjects, and in int’l Law taken into
account in their roles as state officials. Because International Law is superior
to Municipal Law, it can be applied as such by Municipal courts, without any
need for transformation. But, if Constitution forbids this, they allowed some
need for National application, provided that it was a question of National Law,
not affecting the legitimacy of International Law. National courts can be made
to apply National laws that are contrary to International rules, but they would
incur International state responsibility for doing so. Therefore International
26
legal system controls, imperfectly, all National systems.
DUALISM
The important principle of Dualism is that, International Law and
Municipal Law are two separate and distinct orders, in their objects and
spheres of operation, such that the norms of one would not operate within the
realm of the other without a positive act of reception or transformation, as the
27
case may be. The International Law and Municipal Law are two entirely
different things and the International Law can never be applied in the state
25
ibid.
26
ibid.
27
I. Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 1979) at 3234.
28
without incorporating or transforming it into Municipal Law. In Dualism, at
no circumstances, the International Law can prevail over the Municipal Law,
and it is the Municipal Law which is always supreme.
28
Maluwa, T.; “The Role of International Law in the Protection of Human Rights under
Malawian Constitution” (1996) African Year Book of International Law, p. 53; Morgenstern, F., “Judicial
Practice and Supremacy of International Law” (1950); British Year Book of International Law, p. 27.
29
Antonio Cassese, Public International Law, Oxford University Press, 2001.
Dualism concept starts from the assumption that International Law and
Municipal legal systems are two distinct and formally separate categories of
legal orders and these two systems differ as to their subjects, sources and
functions according to Anzilotti.
➢ The subject of the Municipal Law is primarily individuals and groups,
and that of International Law is states.
➢ The Sources of Municipal laws are parliamentary enactments and
courts decision, and for International it is treaties, customs and general
principles of Law recognised by the civilized nations.
➢ The main function of Municipal Law is regulating internal functioning
of the state, relation between the state and the individual, and function
30
of International Law is to supervise the relations between states .
Municipal Law is conditioned by the norm that legislation is to be
obeyed, whereas International Law is conditioned by the pacta sunt servanda
31
principle. The latter principle commands that agreements between states are
to be respected. This principle is at the heart of modern International Law,
especially treaty Law, and underlies the basis for performance of treaty
obligations.
Because of this consensual factor, Anzilotti concludes that the two
systems are so distinct that no possible conflict is possible. In case of any
conflict, National Law prevails; this is predicated on state sovereignty, which
30
Antonio Cassese, Public International Law, Oxford University Press, 2001.
31
J. G. Starke, and I. A. Shearer, Starke's International Law (London: Butter Worth’s, 1994) at 64.
gives the right to the state to determine which rules of International Law are to
32
have effect in a Municipal sphere.
➢ In philosophical terms, monism is that talks of oneness of the soul and
dualism is that talks of two entities, individual and supreme soul.
➢ When monism speaks of the oneness of existence, the term dualism does
not endorse this view.
➢ Monism believes in the fusing of the self into supreme self. On the
contrary, the term dualism does not believe that the individual self
unites with the supreme self.
➢ In International Law, monism believes that International and National
legal systems can become a unity. Dualism states that there is a
difference between internal and International Law.
➢ There is no need for translating the International Law into a National
Law in a monist state. Unlike monism, there is a need for the translation
of International Law into National Law. Unless the translation takes
place, the International Law is not accepted.
33
CRITICISMS OF MONISM AND DUALISM
➢ The criticism of Monistic Theory I is that, it is devoid of scientific
value and intended to underpin ideological and political positions.
➢ The criticism of Monistic Theory II is that, it is nice in theory, but
really utopian and did not reflect reality. But it had important
psychological impact and helped to introduce idea of responsibility of
state officials as individuals.
32
J. G. Starke, and I. A. Shearer, Starke's International Law (London: Butter Worth’s, 1994) at 64.
33
Antonio Cassese, Public International Law, Oxford University Press, 2001.
➢ The criticism of Dualistic Theory is that, it did reflect legal reality of
19th and 20th century, but couldn’t explain some things, like the fact
that some int’l rules do impose obligations on individuals (e.g. piracy).
34
Referred from Nemanjalo Sukalo http://www.academia.edu/1114626/How_International_law_is_incorporated
_into_Municipal _law_and _why_ is_it_important.html.
TRANSFORMATION THEORY
35
International Law undergoes transformation as it spreads universally.
Unless transformed, it cannot be applied to Municipal Law. States incorporate
treaties and norms into their Municipal laws by specific "transformational"
devices. The automatic incorporation of ratified treaties by constitutional
provision, which has been called general transformation, mandates Municipal
enforcement without legislative action beyond ratification.
This theory is also called as the Automatic standing incorporation of
International rules. In this theory, such incorporation occurs if National
constitution / Law says that all state officials as well as National and other
individuals living in the territory of the state are bound to apply certain present
36
or future International Law.
An internal rule provides in a permanent way for the automatic
incorporation into National Law, any relevant rule of International Law,
irrespective it being customary or treaty Law, without any need for a specific
National Law to incorporate.
Therefore, any time a country signs a treaty, or a new customary rule
evolves, states must comply with it, without any further action. It enables
National system to adjust itself continuously and automatically to International
rules.
The case of Filartiga v. Pena Irala, heralded a trend towards the
Municipal incorporation of customary International Law. The Filartiga court
recognized that the Law of nations is a dynamic concept, which should be
35
Referred from http://www.lawnotes.in/Theories_relating_International_Law_and_Municipal_
Law#ixzz3LFdsxNky.
36
Antonio Cassese, Public International Law, Oxford University Press, 2001.
construed in accordance with the current customs and usages of civilized
nations, as articulated by jurists and commentators. It held specifically that
U.S. Law directly incorporated customary International Law principles
prohibiting deliberate government torture. Moreover, in the most
controversial aspect of its opinion, the Filartiga court held that an old rarely
invoked federal jurisdictional statute, the Alien Tort Statute, created an
37
implied right of action for violations of customary International Law.
37
Referred from Nemanjalo Sukalo http://www.academia.edu/1114626/How_International_law_is_incorporated
_into_Municipal _law_and _why_ is_it_important.html.
38
Referred from Nemanjalo Sukalo http://www.academia.edu/1114626/How_International_law_is_incorporated
_into_Municipal _law_and _why_ is_it_important.html.
For example, International Covenant on Civil and Political Rights and
International Covenant on Economic, Social and Cultural Rights have been
39
adopted in India under the Protection of Human Rights Act, 1993.
In the absence of special agreements, a State will decide how to carry
out its International obligations. For example, in the United States, the Federal
government will decide whether an agreement is to be selfexecuting or should
await implementation by legislation or appropriate executive or administrative
action.
This theory of implementation of International Law is also known as
40
Legislative ad hoc incorporation of International rules. In this theory,
International rules become applicable within the State legal system only if and
when the relevant parliamentary authorities pass specific implementing
legislation.
Such legislation can be:
a) Act of parliament translating treaty provisions into National Law
(statutory incorporation). Sets out in detail the various obligations,
powers, and rights stemming from the International provisions.
b) Act of parliament which simply enjoins the automatic application of the
International rule within the National legal system, without
reformulating the int’l rule being incorporated (automatic incorporation)
41
39
Referred from http://www.lawnotes.in/Theories_relating_International_Law_and_Municipal_
Law#ixzz3LFdsxNky.
40
Antonio Cassese, Public International Law, Oxford University Press, 2001.
41
Antonio Cassese, Public International Law, Oxford University Press, 2001.
International rule is selfexecuting, it is better to have the automatic
incorporation of International rules. Better safeguards correct application of
International rules, allows National legal system to adjust itself to International
rules more easily.
SELF-EXECUTING TREATY AND NON-SELF-EXECUTING
TREATY
42
Referred from Nemanjalo Sukalo http://www.academia.edu/1114626/How_International_law_is_incorporated
_into_Municipal _law_and _why_ is_it_important.html.
DELEGATION THEORY
43
Referred from http://www.lawnotes.in/Theories_relating_International_Law_and_Municipal_
Law#ixzz3LFdsxNky.
44
Referred from Nemanjalo Sukalo http://www.academia.edu/1114626/How_International_law_is_incorporated
_into_Municipal _law_and _why_ is_it_important.html.
made by the president on his own authority. Further, a treaty may be
either selfexecuting or nonselfexecuting, depending upon whether
Municipal legislation must be enacted in order for the treaty to enter into force.
In the United States, selfexecuting treaties apply directly as part of the
supreme Law of the land without the need for further action. Whether a treaty
is deemed to be selfexecuting depends upon the intention of the signatories
and the interpretation of the courts. In Sei Fujii v. State of California(1952),
for example, the California Supreme Court held that the UN Charter was not
selfexecuting because its relevant principles concerning human rights lacked
the mandatory quality and certainty required to create justiciable rights for
private persons upon its ratification; since then the ruling has been consistently
applied by other courts in the United States. In contrast, customary
International Law was interpreted as part of federal Law in the Paquette
Habana case (1900), in which the U.S. Supreme Court ruled that International
Law forbade the U.S. Navy from selling, as prizes of war, Cuban fishing
vessels it had seized. Municipal legislation is supreme in the United
States even if it breaches International Law, though the government may be
held liable for such a breach at the International level. In order to mitigate such
a possibility, there is a presumption that the U.S. Congress will not legislate
45
contrary to the country’s International obligations.
45
Referred from Nemanjalo Sukalo http://www.academia.edu/1114626/How_International_law_is_incorporated
_into_Municipal _law_and _why_ is_it_important.html.
a treaty becomes part of Municipal Law only if relevant legislation is adopted.
The same principle applies in other countries where the English common Law
has been accepted (e.g., the majority of Commonwealth states and Israel).
Although the incorporationist view regards customary Law as part of the Law
of the land and presumes that Municipal laws should not be inconsistent with
International Law, Municipal laws take precedence over International Law in
46
cases of conflict.
International Law, no longer constitutes a sphere of Law tightly separate
and distinct from the sphere of Law of National legal systems. It isn’t a
different legal realm from National Law, it has had a huge daily direct impact
on National Law. Many International rules now address themselves directly to
individuals, without intermediary of National systems (e.g. International
crimes) or grant individuals rights before International bodies (e.g. right to
petition).
International Law is no longer jus inter potestates (Law between states),
it also embraces individuals. Int’l Law gradually headed towards a civitas
46
ibid
47
Inspired from Antonio Cassese, Public International Law, Oxford University Press, 2001.
maxima (human commonwealth encompassing individuals, states, and other
aggregates cutting across state boundaries).
International Law is increasingly becoming a jus inter partes (a body of
Law governing relations among subjects in a horizontal manner), rather than a
jus super partes (Law governing from above).
Choice of mechanism for applying International rules is the acid test for
finding out how states feel about International values. States sensitive to
International demands – opt for automatic standing incorporation mechanisms
of customary Law, treaty rules, and decisions of International organizations.
Very few countries adopt such an overall internationalist outlook. Greece,
Netherlands and Spain stand out as countries which do.
Most states still take a nationalist approach to the implementation of
International Law. They do not make International values prevail over
Municipal interest and concerns, they put International Law on same footing
as Municipal Law. In UK it is the parliament that is supremacy over
International Law. France and Russian Federation customary Law prevails
over Municipal Law, but not treaty Law.
Most states do not accord primacy to International rules in their National
legal systems. This shows that they do not want to tie their hands formally
with International rules, but does not necessarily mean that they don’t usually
follow International rules.
treatyimplementing National Law is “special”. This can advance
International Law over Municipal Law.