Roll No.

:-09

Batch: - 2018-2023

GLS LAW COLLEGE

PUBLIC INTERNATIONAL LAW

PAPER TITLE
Relationship between International and Municipal law: a case study of
India

SUBMITTED TO – Ms. Jiya Matharani, Asst. Prof. (Law), GLS Law College.

SUBMITTED BY:-

NAME - Dave Kandarp D.

SEMESTER - 5

DIVISION - A

ROLL NO. - 09

ACADEMIC YEAR - 2020-21

This paper mainly aims to explore the relationship between International Law and
Municipal Law under the Indian context. In this paper the definitions of International law
defined by L.Oppenheim, Public International Law defined by J.G.Starke and Municipal Law
been defined under Black’s Law Dictionary. The relationship between law of nations and
municipal law has always been a fundamental feature of the study of law of nations as a tutorial
discipline. This research paper provides a comprehensive analysis of this relationship. Further
this paper discusses the connection between law of nations and municipal law with special regard
to Indian practice. Borders and content of the states municipal law systems, today very often are
defined in almost natural manner by the rules of the International Law, which gradually have
ensured a sustainable prevalence upon the rules of Municipal Law. This paper also explains
theories that were put forward to help explain the relationship between municipal and
international law such as monism and dualism. It analyses municipal law issues that are better
handled with law of nations and explains the method of handling international legal issues in
municipal courts. This paper also analyses court decisions in some relevant cases and comments
on the bases of the judgments made.

Keywords – International Law, Municipal law, Relations.

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INTRODUCTION

Law of countries or law of nations is that the name for the body of customary and treaty
rules which are considered legally binding by the States in their intercourse with one another .
law of nations consists of the principles and principles of general application handling the
conduct of States and of international organizations in their diplomacy with each other and with
private individuals, minority groups and transnational companies. it's going to be described as
‘the sum of the principles accepted by civilized States as determined by their conduct towards
one another , and towards one another subjects.’ Municipal law is that the national, domestic, or
internal law of a sovereign state defined con to law of nations . Municipal law includes not only
law at the national level, but law at the state, provincial, territorial, regional or local levels.
While, as far because the law of the state cares , these could also be distinct categories of law,
law of nations is essentially tired of this distinction and treats all of them together .

Legislature and court systems are different on the international and municipal levels.
Where the municipal level uses a legislature to assist enforce and test the laws, the international
court system relies on a series of treaties without a legislature which, in essence, makes all
countries equal. Enforcement may be a major difference between municipal and law of nations .
The municipal courts have a enforcement arm which helps require those it determines to follow
the principles , and if they're doing not they are required to attend court. The international court
system has no enforcement and must believe the cooperation of other countries for enforcement.

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MEANING OF INTERNATIONAL LAW

L. OPPENHEIM defines International Law as, "Law of Nation or International Law is

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”2.

It is worth observing that, while law of nations has traditionally concerned itself with the
relations of independent sovereign states, increasingly, law of nations cares also with the
principles governing International organizations and therefore the relations between states and
individuals.

The dictionary also states this idea as “public International Law; Law of nations; Law of
nature and nations; Jus gentium; Jus gentium publicum; Jus inter gentes; Foreign relations Law;
Interstate Law between states (the word state within the latter two phrases being like “nation” or
“country”. Consequently, law of nations could also be described because the Law or rules that
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

1
International law. a treatise. Volume 1 (of 2) by L.Oppenheim
http://www.gutenberg.org/ebooks/41046 last visited on 21st September, 2020.
2
International Law- J.G Starke
https://www.studocu.com/en-gb/document/university-of-london/public-international-law/lecture-notes/international-
law-jg-starke/6011570/view last visited on 21st September, 2020.

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MUNICIPAL LAW

The Black’s Law Dictionary, defines the term “Municipal Law” as: B. A. Garner (Ed. in
Chief), Black’s Law Dictionary Eight Edition (United States: Thomson West, 2004)
"The ordinances and other laws applicable within a city, town or other local government
entity"3.

Thus Municipal Law is that the acts made by the legislature or the Law making authority
of a state, applicable thereto state alone. Municipal Law governs the Municipal aspects of state
and deals with issues between individuals, and between individuals and therefore the
administrative apparatus. In its narrower and more sense , concerning an area governmental unit,
commonly a city or town. In its broader sense, concerning the general public or governmental
affairs of a state, nation, or of nation .

3
Black’s Law Dictionary – 8th Edition
https://www.pdfdrive.com/blacks-law-dictionary-8th-edition-e40394506.html last visited on 21st September, 2020.

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IMPLEMENTATION OF INTERNATIONAL LAW IN INDIAN
MUNICIPAL LAW

The constitution of India Under articles 51, 73, 245& 246 has given consideration to
‘international laws’ and ‘treaties’, but the clause ‘c’ of Art. 51 specially mention ‘International
law’ and ‘treaty obligation’, but art. 51 don't give any clear guidance regarding position of law of
nations s in India also because the relationship of municipal laws and international law.

In India International law are parts of municipal laws provided that they are not
inconsistent with any legislative enactment or the provision of the constitution. Indian court can
apply law of nations if they're not inconsistent with the rule of domestic law. Indian constitution
follows the ‘dualistic’ theory with reference to incorporation of international laws in to
municipal law. International treaties don't become a part of national law in India automatically.
They must be incorporated into system by an act of parliament. The court first looks at the
municipal law and if the municipal law is silent on a point then the court will refer to the
Customary international for the reference.

In Shri Krishna Sharma VS the State of the West Bengal4, the Calcutta HC stated that: “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 irreconcilable.” In another case A.D.M.
Jabalpur VS Shukla5, 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), and the
Courts shall give municipal law.
In India the Courts follow the Dualistic approach, the above views are constant with the
dualistic theory consistent with which treaty becomes a neighborhood of the law of the land only

4
AIR 1980 SC 470
https://indiankanoon.org/doc/1846800/ last visited on 21st September, 2020.
5
AIR 1954 CAL 591

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after it's enacted by the legislature and implemented. The international conventions and norms
are to be read into them within the absence of enacted domestic law occupying the sector when
there's no inconsistency between them.
In fact, the increasing scope of law of nations has prompted most states to simply accept
something of an intermediate position, where the principles of law of nations are seen as part of a
definite system, but capable of being applied internally counting on circumstances, while
domestic courts are increasingly being obliged to interpret rules of law of nations.

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RELATIONSHIP BETWEEN MUNICIPAL LAW AND INTERNATIONAL
LAW

While law of nations is applied within the relations of the states and to other subjects of
law of nations , national or state law which is named municipal law. Is applied with in a state to
the individuals and corporate entities which are the bearers of rights and duties there under.

Apparently, it might be looking that there is hardly any relationship between the two
system as they constitute two different legal systems each of which is designed to operate in its
own sphere and that they applied distinctly to their subjects by different courts, but it's no so. The
problem of relationship between the principles of law of nations and municipal law is one among
the foremost controversial questions of legal theory.

Originally the connection between the 2 laws was a matter of theoretical importance i.e,
weather law of nations and municipal law are parts of a universal legal order to they are form
distinct system of law but at the present the question has acquired pas practical significance also .
When there exists a conflict between the rules of international law and municipal law, a court is
faced with of the difficulty of arriving at a decision.

Before a world tribunal, the question is one among primacy, whether law of nations takes
primacy over municipal law, or the other way around . If the conflict arises law of nations
between a municipal court, the solution depends on how far the constitutional law of the state
allows law of nations to be applied directly by the courts. Almost every case, during a municipal
court, during which a rule of law of nations is asserted to control , the choice rises the matter .
For instance, diplomatic immunities granted by law of nations would become meaningless unless
they're recognized by municipal law.

Further customary rules of extradition are interpreted and applied by municipal courts
only. It is even be noted that law of nations gives a private certain rights or obligations which
may be enforced directly in national court as was alleged within the Pinochet case Generally the
way during which law of nations is used within the national courts of any particular country is
essentially determined by the national law of that country.

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 In fact, law of nations cannot work without the co-operation and support of the national
system . The question of relationship of the 2 systems has acquired importance in modern law of
nations also because a really large a part of it's directly concerned with the activities of
individuals who come under the jurisdiction of municipal courts.

Thus, it's in municipal courts an increasing a part of law of nations is enforced.

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TRADITIONAL APPROACH – THEORIES OF RELATIONSHIP AMONG
INTERNATIONAL LAW AND MUNICIPAL LAW

I. MONISM:
Monism Considers law of nations and Municipal law to be a neighborhood of an
equivalent body of data i.e. Law. Monists assume that the interior and international system forms
a unity. They both operate within the same sphere of influence and are connected with an
equivalent material and thus can inherit conflict, but if there's conflict then law of nations will
prevails. Monism dictates national law that contradicts law of nations is null and void, albeit it's
the constitution.
In Kelsen’s view, the last word source of the validity of all law derived from a basic rule
“Grundnorm” of law of nations. His theory led to the conclusion that each one the principles of
law of nations were supreme over law of nations that a municipal law inconsistent with law of
nations was automatically null and void which rules of law of nations were directly applicable
within the domestic sphere of states. Law of nations and Municipal Law are two phases of 1 and
therefore the same thing.

II. DUALISM:
The dualist doctrine developed within the 19th century. This theory considers law of
nations and Municipal law to be separate legal orders operating and existing independently of 1
another. Dualists emphasize the difference between these two laws and need translation of law of
nations into the Municipal law.
International law is that the law applicable between sovereign states and depends on the
common will of states for its authority whereas Municipal laws apply within the state regulating
the activities of citizens and have source of authority form state itself. But when both these laws
will affect same material there'll be conflict, a municipal court following the dualist doctrine
would apply municipal law. Thus this doctrine considers law of nations as weak law because it
may be a law among state made out of an agreement.6

6
Tim Hiller, Sourcebook on public international law, Cavendish Publishing Ltd, London, 35.
https://www.scribd.com/doc/83326334/Tim-Hillier-Public-International-Law last visited on 21st September, 2020.

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PROBLEMS ASSOCIATED WITH APPLICATION OF INTERNATIONAL
LAW IN MUNICIPAL COURTS
Many domestic courts lack professional capacity correctly to use law of nations norms, as
most domestic judges have little, if any, law of nations experience or training. the sensible
problems which the municipal judge may encounter within the application of such norms are
essentially of two kinds: the primary relates to the power of the municipal judge to realize a
knowledge of the content and meaning of International law while the second relates to the scope
that's hospitable him to use International law within the face of the principles of his own system
which define his status and role.
The independence and quality of some municipal courts and judges in questionable; such
problems of limited capabilities and politicization could also be exacerbated if domestic courts
were to deal more frequently with inter-national law norms, often characterized by a high degree
of politically sensitive and legal complexity.
Also, as compared to rules of municipal law, the principles of law of nations suffer from
greater uncertainty. law of nations lacks an efficient executive authority to enforce its rules.
thanks to the shortage of the effective sanctions, rules of law of nations are frequently violated.
Its enforcement machinery is extremely weak. It can't be denied that the concepts of Sovereignty
and Domestic Jurisdiction are the formidable obstacles within the basic recognition.
A great limitation is law of nations cannot intervene within the matters which are within
the domestic jurisdiction of States.
For example, whenever the U.S. raised the matter of alleged violation of human rights in
Soviet Union (i.e., its treatment of dissidents) the latter took the plea of non-interference within
the internal matters. One should note that the movement towards increasing the international
law-applying capabilities of municipal courts and therefore the greater utilization of that capacity
in actual practice is by no means universal.
Perhaps paradoxically, two groups of states are largely overlooked of the method of
increased law of nations -application: states that strongly resist the penetration of international
law into their domestic laws already reflect to an outsized extent international norm – thus
rendering redundant the invocation of the latter.

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 Any long-term strategy for integrating domestic courts within the international judiciary
by bolstering their role in implementing law of nations must therefore account for uneven
geographical and political prevalence of the law of nations application.

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CONCLUSION
Indian constitution embodies the essential framework for the implementation of
international treaty obligations undertaken by India under its domestic system . consistent with
this, the govt of India has exclusive power to conclude and implement international treaties or
agreements. The President of India is vested with the chief power of the govt of India and thus is
empowered to enter into and ratify international treaties. This doesn't mean that law of nations ,
ipso facto, is enforceable upon ratification. this is often because Indian constitution follows the
“dualistic‟ theory with reference to incorporation of law of nations into municipal law.
Thus, in absence of specific domestic legislation enacted by the Parliament, the India’s
international obligations aren't enforced in Indian Courts. However, a perusal of the
jurisprudence shows that a pro-active role is being played by Indian judiciary in implementing
India’s international obligations under International treaties, especially within the field of human
rights and environmental law.
Thus, Indian judiciary through judicial activism‟ fills from the gaps within the municipal
law of India and law of nations , thereby playing a crucial role within the implementation of law
of nations in India.

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