Theories of relationship between International law and Municipal law
Specific Adoption Theory
Two main Theories
Monoism based on strict scientific analysis of internal structure of legal systems as such.
Monoist Theory Of Kelson
- Based on Kantian philosophy – law lays down patterns of behavior with sanction attached to it in case of non-observance.
- Same definition applies to international law and municipal law.
- All states equal before law because of rules of international law. Therefore, international law is superior to municipal law. International law is the grundnorm.
Generally supported by positivist – stresses overwhelming importance of state – international law is founded upon consent of states
- Rules of international law and municipal law exist separately and cannot overlap or effect each other.
- Different between municipal law and international law
- Of subjects – Individual and state
- Of origin – will of state and common will of all states.
- Modification of dualism – Rousseau – begins by saying international law and municipal law are different like French and English laws are different and do not overlap. Neither of international law and Municipal law is supreme.
- But there may be conflict of obligations. When state within its domestic sphere does not act position remains unaffected but rather the state as it operates internationally becomes liable under International law for breach of obligation under international law.
Harmonizing approach followed by Sir Fitzmaurice.
Specific Adoption Theory - international law cannot be directly enforced in municipal law. There has to be specific adoption -J.G. Varghese v. Bank of Cochin 1980 SC- referred International Convention of Human Rights – For Treaties – Eg. Of specific adoption by India – Anti Hijacking Act 1982, Anti Apartheid (UN convention) Act 1981.
Transformation Theory - international law goes transformation and then it is applied in municipal law.
Delegation Theory – Constitutional Rule of international law permits each state to determine how international law will become applicable in the field of state law. No need of transformation or specific adoption.
Customary international law – same as British.
Paquete Habana - Justice Gray – International law is part of our law and must be ascertained.
International Treaties – different from British – This application – depends on US constitution
Article 6 of US-Charter – Treaties entered into by US shall be supreme law of the land. If conflict between international law. State law – state law prevails
International Treaties –
a. Self–executing – no Act regard and no consent of congress required.
b. Non–self–executing – consent of congress not required.
Customary international law – is part of British Law – provided –
1. Rules of international law do not violate any statute
2. Scope of Customary international law once decided by House of Lords is binding on all courts.
Example of its importance on British Practice
1. Rules of construction – if ambiguity - presumption that Parliament never intended to violate international law.
2. Rules of evidence – rules of international law need not be proved by evidence –exceptions (a) Act of State; (b) crown Prerogative.
1. Signed by Crown under Crown prerogative
2. Brought into effect by legislature – must (a) accord consent (b) make state law.
Parliament consent is only for following treaties: -
a) Which affect British citizens
b) Which amend/modify common law/ statute law.
c) Which confer addl. Powers on crown
d) Impose additional burden on courts
e) Treats which require Parliament’s consent for application
f) Ceding British territory
Before independence – See British Practice
After Independence – Constitution of India has to be considered. DPSP – Article 51 State shall endeavor to (c) foster respect for international law and treaty obligations in dealings of organized peoples with one another (d) encourage settlement of disputes by arbitration.
Thus, article 51 treats international law (which includes although under Article 37, DPSP’s are non-justifiable but they find a place in Constitution of India but it is duty of state to follow them in making laws.
Article 372 (1) – saving clause of Constitution of India – laws in force shall continue to be in force – so pre independence British practice is also saved.
For treaties – dualist view – State of Madras v. GG Menon 1954 – old treaty – India not in British possession now – Fugitive offenders Act – not applicable no new treaty – Post Constitution of India position has changed with respect to Act not withstanding Article 372.
Article 253 – Parliament can make law under union or state list to give effect to International treaties. Eg. Juvenile Justice Act 2006
Every treaty may not require law made by Parliament - settlement of boundary dispute is not cessation of territory – so no Act is regard – only treaty will do.
Remedy for breaches of International law is not to be found in law courts of state because international law per se has no force of law till actual legislation.