RELATION BETWEEN

INTERNATIONAL &
MUNICIPAL LAW
 - A Brief Synopsis -
1.) Theoretical Approaches
2.) The position of municipal law within international
sphere
3.) International Law before Municipal Courts
 State practice of the United Kingdom
 State practice of the U.S.A
 State practice of India
4.) Executive Certificates
1. THEORETICAL
APPROACHES

MONISM

DUALISM
 THEORIES
• DUALISM: - The state is supreme and there exists
a wide difference between functioning of the
international and municipal legal orders.
Influence of the Positivist thought

Municipal International
Law Law
 THEORIES
• MONISM: - Municipal and international law
form one single legal order or at least a number
of interlocking orders which should be
presumed to be coherent and consistent.

International
Law

Municipal Law
 The Chief Proponents
Dualism
• 1st approach: -Triepel &
Strupp: Supremacy of the
State.
• 2nd approach: - Fitzmaurice
& Rousseau: No common
field of operation between
national & international law.
Both are supreme in their
own spheres.
Monism
• Version- 1: - Lauterpacht-
Representing the Naturalist
Stand. Primary function of
all law is concerned with the
well-being of individuals.
• Version- 2: - Kelsen- Legality
of a rule is affirmed once it
conforms to an anterior rule.
Refers to the grund norm.
2.) The position of municipal law within
international sphere
INTERNATIONAL
SPHERE

MUNICIPAL LAW
 2.) The position of municipal law within
international sphere
International Law does not ignore municipal law

Source of International Law

International Law leaves

certain questions to be
decided by municipal law
 But…
• The general rule of international law is that a
state cannot plead a rule or a gap in its own
municipal law as a defense to a claim based
on international law.

• STATES ARE REQUIRED TO

PERFORM THEIR INTERNATIONAL
OBLIGATIONS IN GOOD FAITH.
 Art.27, VCLT, 1969

• In so far as treaties are concerned, a

party may not invoke the provisions of
its internal law as justification for its
failure to carry out an international
agreement.
Alabama Claims Arbitration (1872)

“….the government of Her Britannic

Majesty cannot justify itself for a failure
in due diligence on the plea of
insufficiency of the legal means of
action which it possessed.”
3.) International Law before Municipal
Courts
Municipal
Sphere

International
Law
 Theories highlighting penetration of
international law in municipal spheres
 Principle of Transformation: - Based upon the
perception of two distinct systems of law, operating
separately, and maintains that before any rule or
principle of international law can have any effect
within the domestic jurisdiction, it must be
expressly and specifically transformed into
‘municipal law’ by an Act of Parliament.
 International Law before Municipal
Courts
Principle of Incorporation: - International
Law is a part of Municipal Law automatically
without the necessity for the interposition of
a constitutional ratification procedure.

Blackstone being the chief proponent

 -Doctrine of Incorporation-
Customary International Law-
The dominant British
Approach…?
The British State Practice- Customary
International Law
- Incorporation -
Buvot v. Barbuit (1737)

Triquet v. Bath (1764)

The development in the understanding
of incorporation

Customary international law

rules as part and parcel of
the common law of England

This was subject to priority

granted to Acts of
Parliament and tempered
by the principle of stare
decisis
 The shift from the incorporation
approach

West Rand Gold

Mining Co. v. R.
• German ship sank (1905) • Statutes had
British vessel in the predominance over
English Channel. •Blurred the customary law.
• No British distinction • Statutes have to be
legislation existed to between construed to avoid
conflict with int. law
try the captain incorporation and
transformation. Mortenson v. Peters
R v. Keyn (1876) (1906)
The modified incorporation doctrine
• International law has no validity except in so far as its
principles are accepted and adopted by our own
domestic law…The courts acknowledge the existence of
a body of rules which nations accept among themselves.
On any judicial issue they seek to ascertain what the
relevant rule is, and having found it they will treat it as
incorporated into the domestic law, so far as it is not
inconsistent with rules enacted by statutes…
- Chung Chi Cheung v. R
(1939)
 Trendtex Trading Corporation v.
Central Bank of Nigeria, 1977
1.) State Immunity was claimed by the
Central Bank of Nigeria
2.) The doctrine of stare decisis is not
very popular in international law.
 Maclaine Watson v. Department of
Trade and Industry, 1988
• The case concerned the demise of
the International Tin Council.
• To what extent members states
could be made liable for the debts
incurred by the ITC.
 The trend oscillated towards
Incorporation once again
• Where international law had
Trendtex Trading
changed, the court could
Corporation v.
implement that change ‘without
Central Bank of
waiting for the House of Lords
Nigeria, 1977
to do it’.

Maclaine Watson •Courts should give effect to clearly

v. Department of established rule of international law.
Trade and But where int. law is indeterminate,
Industry, 1988 the court cannot fill in the gaps.
The Contemporary Approach
Transformation
Cautious
Incorporation
 Caution has to be exercised
• Caution has to be exercised before accepting a
proposition in unqualified terms.
• International Law was not a part, but was
rather one of the sources of English Law.
No ‘incorporation’ in case of Aggression
Cust. Int. law is
applicable in the
English courts only
where the
No direct constitution permits Int. Law could not
create a crime triable
& directly, w/out the
intervention of
unqualified Parliament, in an
acceptance English Court

A degree
of caution
is R v. Jones
necessary 2006
Therefore, incorporation will be subject to
considerations of a constitutional nature
• The courts will be obliged to conduct an
enquiry into whether a particular provision
indeed constitutes a rule of custom;
and
• Whether there are any constitutional bars to
incorporation.
Therefore, British practice in regards to
customary rules of international law
….subject to the following conditions: -
(a) Rules of international Law should not be
inconsistent with the British statutes; and
(b) If the highest court once determines the
scope of a customary rule of international
law, then all the courts in Britain are bound
by it.
- TREATIES -
 TREATIES
• For treaties, an intermediate stage after signature
and before domestic operation is required.

Rel’p between
executive and
legislature

Influence
Transforma- of executive
tion is
required is greater in
treaty law
 Parlement Belge (1879)

• Issue: - Whether the Admiralty Court has the

jurisdiction over the vessel belonging to the
Belgian monarch or did the vessel enjoy
sovereign immunity??
 The Court
Agreement •Property of the monarch including
between Belgium warships shall be immune from
& Britain jurisdiction

The present •The present vessel was a

vessel cargo boat.

• Such immunity could not be extended

without parliamentary consent.
The Court • This, in principle, would be contrary to
the law of the constitution
Sec.6 of the European Parliamentary
Elections Act, 1978

….no treaty providing for any

increase in the powers of the
European Parliament would be
ratified by the UK without being
first approved by the Parliament.
 Maclaine Watson v. Department of
Trade & Industry, 1989

• As a matter of the constitutional law of the United

Kingdom, the royal prerogative, whilst it embraces
the making of treaties, does not extend to altering
the law or conferring rights on individuals of rights
which they enjoy in domestic law without the
intervention of Parliament.
 The kinds of treaties

Non-Self
Self-Executing
Executing
Intervening Act is
Easy transition
required

Does not need It can come into effect only

specific legislation through statutory enactment
 Treaties requiring Parliamentary
consent
(a) Treaties which affect the right of British subjects;
(b) Treaties which amend or modify common law or
statute law of Britain;
(c) Treaties which confer additional powers on the Crown;
(d) Treaties which impose additional financial burden on
the government
(e) Treaties which specifically provide that Parliamentary
consent is required.
(f) Treaties which cede the British territory.
 Methods of inclusion
Statutory
referral to the Scheduling
definitions to the
contained in a relevant Act
treaty

Tangential
Specific
Inclusion Reference in
legislation a statute
of treaty
in a
statute
 -The Ponsonby Rule -
• The text of any agreement requiring
ratification, approval etc. has to be laid before
the Parliament at least twenty-one sitting days
before any of these actions is taken.
The United States
 Customary International Law
• The position is same as in the UK.
• The early pure incorporation cases gave way
to a more cautious approach.
• Statutes tend to supersede customary law
 Treaty Law
• All Treaties made or which shall be made with
the authority of the United States, shall be the
supreme law of the land and the Judges in every
state shall be bound thereby, anything in the
Constitution or Laws of any state to the
contrary notwithstanding.

Art VI, Sec.2 of the Constitution

 Sei Fuji v. California
• Plaintiff- a Japanese purchased some land
in California.
Facts • The land was escheated to the state under
the law of California.

The • The UN Charter endorsed promoting

human rights and fundamental freedoms
without racial discrimination, thereby
question superseding Californian law.

• Charter provisions with respect to owning

property are non-self executing.
The Court • A treaty does not automatically supersede
local law.
 Therefore…
• Even though ‘respectful consideration’ should
be given to the interpretation of an
international treaty but in the absence of a
clear and express statement to the contrary,
the procedural rules of the forum State govern
the implementation of the treaty in that State.
- THE POSITION IN INDIA -
 THE PRE-CONSTITUTION
CLIMATE
• The English Common Law doctrines widely
applicable in India.
• Art.372(1): “….all laws in force in the territory of
India immediately before the commencement of
this Constitution, shall continue in force therein
until altered or repealed or amended by a
competent Legislature or other competent
authority .”
 Art.253 of the Constitution of India
• 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 other country or
countries or any decision made at an
international conference, association or
other body.
- DUALIST APPROACH VISIBLE-

• If in respect of any principle of international law, the

Parliament says ‘NO’, the court cannot say ‘YES’.
National court shall approve international law only when
it does not conflict with national law. In case however,
the conflict is inevitable, the national law shall prevail.

Gramaphone Co. of India Ltd. Birendra Bahadur Pandey

AIR 1984 SC 667
 Article 51
• The State shall endeavor to-
(a) 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 organized peoples
with one another; and
(d) encourage settlement of international disputes by
arbitration.
In re Berubari Union and Exchange
of Enclaves, 1960
 Settlement of boundary dispute
• The treaty making power has to be exercised as
contemplated in the Constitution itself.
• An adjustment of boundary which international law
regards as valid between two nations, should be
recognized by the courts and the implementation
can be with the executive.
• In case of cession, specific legislation is required
Jolly George Verghese v. Bank of
Cochin

Art.11 of
Sec.51 of
the
the CPC
ICCPR
 The main issue
• Art.11 No one shall be imprisoned merely
on the ground of inability to fulfill a
contractual obligation.
• Sec.51 provided for arrest and detention in
prison in execution of the decree.
• Whether the judgment debtor could be
arrested and detained in civil prison in
execution of money decree.
 The Court
• The positive commitment of the
States Parties ignited legislative
action at home but does not
automatically make the Covenant
an enforceable part of the corpus
juris of India.
Civil Rights Vigilance Committee v. UOI
 Gleneagles Accord, 1977
• The Government of India signed the
Gleneagles Accord of 1977, entered into by
the member countries of the
Commonwealth wherein they reaffirmed
their full support for the international
campaign against apartheid.
 The Supreme Court
• Art.51 is not enforceable by any
court and if the Parliament does not
enact any law for implementing the
obligations under a treaty entered
into by the Government of India with
foreign countries, courts cannot
compel Parliament to make such law.
In the absence of such law, court
cannot also, in our view enforce
obedience of the Government of
 Vellore Citizen’s Welfare Forum v.
UOI
 Sustainable development as a balancing concept
between ecology and development.
 It is recognized as Customary International Law
even though its salient features are yet to be
finalized by international jurists.
 Justice Kuldeep Singh treated “the precautionary
and the polluter-pays principle” as essential
features of “Sustainable development”.
 Customary International Law
Sustainable
These are part of Development
Cust. Int. Law and
hence have full legal
force in India

Polluter-Pays Precautionary
Principle Principle
Apparel Export Promotion Council
v. A.K.Chopra
Vishakha v. State of Rajasthan

Apparel Export Promotion

Council v. A.K.Chopra
The Courts are under an obligation to
see the message of the international
instruments is not allowed to be
drowned.
 Observations
• In cases involving violation of human rights
the courts must forever remain alive to the
international instruments and conventions
and apply the same to a given case when
there is no inconsistency between
international norms and the domestic law
occupying the field.
Thus, following conclusions could be
derived
(1) Customary rules of international law are treated to be par of
domestic law in a large number of states and if they do not
conflict with existing municipal law, there is no need of their
specific adoption.
(2) In matters of treaty obligations, India (specifically) has a
dualist framework.
(3) In most cases, municipal courts give priority to the
application of municipal law, irrespective of the applicability
of rules of international law and question of any breach of
int. law is left to settled at the diplomatic level.
4.) Executive Certificates
 Ascertainment of Facts
• Practice adopted by the courts of applying to the
executive branch of government for the conclusive
ascertainment of certain facts.
• E.g. whether a state of war is in operation as
regards a particular country or as between two
states.
• The Courts will consult the government and regard
the executive certificate as conclusive of any
relevant rules of international law.
Executive Certificates- Not subject to
judicial review
• The contents of such certificates are
conclusive of the matters contained
therein.
• They are reviewable only if they
constituted a nullity in that they were
issued outside the scope of the relevant
statutory power.