While International Law is applied in the relations of the States and to other subjects of International Law, Whereas municipal law which is also known as national or State law, is applied within a State to the individuals and corporate entities which are the bearers of rights and duties there under. [1]
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, a Court is faced with the difficulty of arriving at a 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 problems. Further, customary rules of extradition are interpreted and applied by municipal courts only. It is also be noted that International Law gives an individual certain rights or obligations which can be enforced directly in national Courts as was alleged in the Pinocliet case.
Generally, the manner in which International Law is employed in the national courts of any particular country is largely determined by the national law of that country. In fact, International Law cannot work without the co-operation and support of the national legal systems.
The views of the jurists on the question of relationship of International Law and municipal law are divergent which have led to the emergence of different theories. The two theories are as follows:
(1) DUALISTIC THEORY:
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 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. Such a view avoids any question of the supremacy of the one system of law over the other since there share no common field of application : each is supreme in its own sphere.
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. The theory was later on followed by Italian jurist Anzilotti. Starke says that the theory represents two entirely distinct legal systems, International Law having an intrinsically different character from that of State law.
According to dualists, municipal courts shall apply municipal law in case of a conflict between International Law and municipal law. Thus, municipal law shall have primacy over International Law according to this view.
(2) MONISTIC THEORY:
Monistic theory was pronounced in the Eighteenth century. It was put forward 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. It has been denied 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 they 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 the hump 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 different ways. These differences stem from the general theoretical concept of International Law as a universal legal system.
Indian Practice
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.
The above Article forms Part IV of the Constitution which lays down the Directive Principles of State Policy. The provisions in Article 37 occurring in the same Part, though declares that the directive principles in Part IV are fundamental in governance of the country and it shall be the duty of the State to apply these principles in making laws, the provisions contained therein shall not be enforceable in any court. It has been addressed to the executives and the legislatures of the country, and as such are not enforceable in the courts. However, directive principles are fundamental in governance of the country to implement them by making laws. Thus, the Indian constitutional policy is committed to promote international peace and security and also to foster respect for International Law and treaty obligations and to apply these principles in making laws.
No conclusion can be drawn from the Article 51 as to how far rules of International Law shall be applied by the courts. Article 51 is simply a pledge that India will work for the promotion of international peace and security, enhancement of International Law and treaty obligations and settlement of international disputes by peaces means. This Article has been implemented by the executives through the foreign policy of India. However, wordings of the Article 51 make one thing clear, i.e. reference of the words ‘International Law’ and ‘treaty obligations’ implies due the former refers to customary International Law. It may mean that Article 51 treats customary law and treaty law at the same footing. However, be application of customary International Law and treaties have been discussed separately.
(a) Customary International Law—As far as the application of customs International Law is concerned, it appears that Indian Courts follow the doctrine of incorporation, as adopted in Great Britain. Thus, Indian courts would apply customary rules of International Law, if they are not overridden by clear rules of domestic law[2]. If they are in conflict with the domestic law, courts shall apply domestic law.
In Shri Krishna Sharma v. The State of West Bengal,[3] 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 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 irreconciable.[4]”
In A.D.M., Jabalpur v. Shukla[5], Justice H.R. Khanna in his dissenting held likewise by stating that if there is a conflict between municipal laws International Law (customary International Law), the Courts shall give municipal law.
However, in some cases the Supreme Court applied the rule incorporation, i.e., customary rules of International Law was applied when were not inconsistent with the domestic law.
In Gramophone Company of India Ltd. v. Birendra Bahadur Pandey[6], the observations of the Supreme Court relate to the binding force of the customary rules of International Law. From the decision of this case it was made clear that the Indian Courts shall apply customary International Law in India to the extent they are not inconsistent with the municipal laws.
(b) Treaties.—As to treaties, it is submitted that they shall not be binding upon Indian Courts unless they have been implemented by legislation. Basu says that ‘no treaty which has not been implemented by legislation shall be binding on the municipal courts’. 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.
In Birma v. State of Rajasthan,[7] the Court held that “Treaties which are part of, International Law do not form part of the law of the land unless expressly made so by the legislative authority”.
In Shin Kumar Sharma & others v. Union of India,[8] the Delhi High Court held: In India, treaties do not have the force of law and consequently obligations arising therefrom will not be enforceable in municipal courts unless backed by legislation’. Instances of other cases wherein the above principle has been followed are: Motilal v. U.P. Governments,[9] Maganbhai v. Union of India[10], Nirmal v. Union of India, and Jolley George Verghese v. Bank of Cochin[11]. In these cases it was held that legislative power exclusively belongs to Parliament. They relied 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.
In Bangalore v. Union of India[12], the question was as to whether Boycott and Cook, the two cricket players shall be allowed to visit India and to play cricket matches as members of the English Cricket Team against India in view of their links with South Africa which was practicing the policy of apartheid. In this case the court observed that:
“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 such law the absence of such law, Court cannot also enforce obedience of the Government of India to its treaty obligations with foreign countries.”
The above view is consonant with the dualistic theory according to which a treaty becomes a part of the law of the land only after its transformation into that law by the legislative process.
However, in a few cases, especially in relation to human rights, international conventions have been taken into account by the courts where it was found that there has not been any inconsistency between international conventions and domestic law.
In Vishakha v. State of Rajasthan,[13] 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 realisation 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 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.
Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote in object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of the Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Thus, the courts in India may enforce international treaties and conventions which are not inconsistent with Indian laws.
Application of International Law depends largely upon the legislature as well as judiciary of a State. They are expected to take cognizance and endeavour to honour the international obligations of the State. It has to be realised by them that neither municipal law nor International Law is supreme, but they are concordant with each other. They both have been made to solve the problems of human beings in different areas. If they refuse to accept the rules of International Law, relations between the States would obviously become tense and the high ideals of maintaining international peace and security would begin to look like utopian.
[1] Dr. Agarwal H.O., International Law & Human Rights, 15th Edition 2008 p. 40
[2] D.D. Basu Commentary on the constitution of India, Vol II p. 404
[3] AIR (1954) Calcutta 591.
[4] Ibid., at p. 591
[5] AIR (1976) Supreme Court p. 470
[6] AIR (1984) Supreme Court p. 667
[7] AIR (1951) Rajasthan p. 127
[8] AIR (1968) Delhi, p. 64
[9] AIR (1951) Allahabad 257
[10] AIR (1969) Supreme Court 783
[11] AIR (1980) Supreme Court p. 470
[12] AIR (1983) Karnataka p. 85
[13] AIR 1997 Supreme Court p. 3011
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