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Public International lawPublic International law

Relationship between the

international law and the

municipal law

By:

Name: Ayush Bansal

Roll no.: 08

b.a.,llb. 2ndyear

Acknowledgment

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I, Ayush Bansal, would like to express my gratitude to our Public

International law teacher,

Mr. Ghulam Yadani !or making the sub"ect so easy and

understandable to us that has helped me to put my best e!!orts to the

assignment

Municipal law

Municipal lawis the national, domestic, or internal lawo!

a so#ereignstatede!ined in opposition to international law. Municipal law

includes not only law at the national le#el, but law at the state, pro#incial,

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territorial, regional or local le#els. $hile, as !ar as the law o! the state is

concerned, these may be distinct categories o! law, international law is largely

uninterested in this distinction and treats them all as one. %imilarly, international

law makes no distinction between the ordinary law o! the state and

its constitutional law.

Article &' o! the (ienna )on#ention on the *aw o! +reatiespro#ides that, where

a treaty con!licts with a states municipal law -including the states constitution,

the state is still obliged to meet its obligations under the treaty. +he only

exception to this rule is pro#ided by Article /0 o! the (ienna )on#ention, where

a states expression o! consent to be bound by a treaty was a mani!est #iolation

o! a 1rule o! its internal law o! !undamental importance1.234

+he term 5municipal law6 is used in two di!!erent ways. In one sense, municipal

law is simply any law which applies internally within a nation, in contrast

with international law. +he )onstitution o! Australia, !or example, would be

classi!ied as municipal law because it is concerned with the internal go#ernance

o! Australia. 7n the other hand, the )on#ention on the 8ights o! the )hild is

part o! international law. In another sense, the term is used speci!ically to

describe the body o! law utilied within a gi#en municipality.

+he distinction between municipal and international law in the !irst sense is

important. As a general rule, international law is deemed as binding and it will

take precedent unless a nation can demonstrate that an aspect o! a treaty orsimilar agreement runs contrary to one o! its !undamental #alues. 9or example,

in the unlikely e#ent that an international law banning women !rom #oting was

passed, undoubtedly a number o! nations would re!use to comply with it under

the argument that it would undermine the #alue o! e:uality which is enshrined

in their cultural and legal precedents.

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Municipal *aw is a mixture o! ordinances, regulations, bylaws and decisions

that go#ern a municipality. Because municipalities ha#e many and #arious

responsibilities, the law in this area co#ers a broad range o! issues.

A municipality is a city, town or local go#ernment unit, !ormed by municipal

charter !rom the state as a municipal corporation. Its purpose is to go#ern local

a!!airs such as oning, the deli#ery o! ser#ices such as water and police

protection, and the administration o! local departments like the school system.

*ocal ordinances are dra!ted and;or en!orced by go#erning bodies o!

-sometimes elected o!!icials such as the city council, school boards, planning

boards or oning boards.

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ha#e a speci!ic ordinance against murder, but i! someone murdered someone

within city limits, prosecution would take place under state or pro#incial law.

(iolations o! municipal law can sub"ect people to #arious penalties such as !ines

or "ail time. People should be aware that ignorance o! local ordinances is not

accepted as an excuse !or #iolating them. Most municipal codes are reasonably

similar but people who are not sure about the legality o! a gi#en acti#ity should

consult a lawyer.

International law

International law is a body o! laws, regulations, and accepted practices by which

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di!!erent nations throughout the world interact with each other as well as with

their own citiens and citiens o! other countries. +here are two basic categories

o! International *aw, public International *aw and pri#ate International *aw,

although the two tend to o#erlap !re:uently. Public International *aw deals with

relationships between di!!erent nations or between a nation and persons !rom

another country. Pri#ate International *aw generally deals with indi#idual

concerns, such as ci#il or human rightsissues, not only between a go#ernment

and its own citiens but also in how its citiens are treated by other nations.

nternational law is de#eloped and agreed upon by those that make up the

international system, but not e#ery nation state is a member or has a part in the

process. Most nations are said to comply with International *aw, but that

appears :uestionable considering the number o! human rights #iolations still

occurring around the world. $hile the international community does attempt to

hold all nations to International *aw, it is not always !easible. 9orce may be

necessary in order to ensure compliance, and the international community is

generally against the use o! !orce except in the most dire circumstances.

+here are also cultural issues that play a part in acceptance o! and compliance

with International *aw. %ome nations ha#e a theocratic, or religious,

go#ernment rather than a secular one and !eel more bound to the tenets o! their

!aith than to man>made law. In some cases, what most o! the world #iews as

human rights #iolations according to International law, may be #iewed by some

nations as acceptable actions or punishments prescribed by religion. +his can

create #ery sensiti#e situations.

+he ?nited @ations-?@ is probably the most well recognied o! all

international institutions. It has in!luence o#er the world community as whole as

well as indi#idual nations. +he ?@ is supposed to establish and protect peace

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and cooperation between nations and to ensure that people are treated humanely

by their own as well as by other go#ernments and groups.

$hile many nations ha#e agreed to the ?@ )harter, they still retain so#ereignty.9ew would agree to li#e completely under ?@ rule, especially in light o! recent

scandals and the inability o! the institution to achie#e its goals. +he ?nited

@ations has un!ortunately been plagued by scandals and percei#ed

incompetence o#er the years. )ritics gi#e the 7il !or 9ood program and the

ine!!ecti#eness in protecting human rights in the 8wanda genocideand more

recently the =ar!ur region o! %udan, as examples.

As the world seems to grow smaller, with people interacting on a global scale,

International *aw seems to make sense. state entities so !ar as the

rights and duties o! such indi#iduals and non>state entities are the concern o! the

international community.234

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state practice can sometimes be deri#ed !rom intergo#ernmental resolutions or

academic and expert legal opinions -sometimes collecti#ely termed so!t law.

International law has existed since the Middle Agesbut much o! its modern

corpus began de#eloping !rom the mid>3Eth century.+wo sophisticated legal

systems de#eloped in the $estern $orld the codi!ied systems o! continental

Duropean states -)i#il *aw and the "udge>made law o! Dngland -)ommon

*aw. +he !all o! the 8oman ci#iliation did not result in the loss o! the

concepts o! 8oman *aw. %tarting in the later Middle Ages, unlegislated 8oman

law -ius commune or lex mercatoria was applied by merchants in northern

Italian city states and north>western Duropean countries as the basis !or

commercial -and other relationships. In the &Fth century, the two $orld

$arsand the !ormation o! the *eague o! @ations-and other international

organiations such as the International *abor 7rganiation all contributed to

accelerate this process and established much o! the !oundations o! modern

public international law. A!ter the !ailure o! the +reaty o! (ersaillesand $orld

$ar II, the *eague o! @ations was replaced by the ?nited @ations, !ounded

under the ?@ )harter. +he ?@ has also been the locus !or the de#elopment o!

new ad#isory -non>binding standards, such as the?ni#ersal =eclaration o!

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Relation between International law and Municipal law

$hile international law is applied in the relations o! the states and to other

sub"ects o! international law, national or state law -the name municipal law has

been !or a want o! a better term is applied within a state to the indi#iduals and

corporate entities. Apparently there is hardly any relationship between the two

systems as each is designed to operate in its own sphere and they are applied

distinctly to their sub"ects by di!!erent courts. But, it is not so. +he problem o!

relationship between the rules o! international law and municipal law is one o!

the most contro#ersial :uestions o! legal theory. $hen there exists a con!lict

between the two systems, a court is !aced with the di!!iculty o! arri#ing at a

decision. 9urther, international law cannot work without the cooperation and

support o! national legal systems, #i. =iplomatic immunities granted by

international law would become meaningless unless they are recognised

municipal law. Moreo#er, a #ery large part o! modern international law is

directly concerned with the acti#ities o! indi#iduals who come under the

"urisdiction o! municipal courts. $hile International *aw is applied in the

relations o! the %tates and to other sub"ects o! International *aw, $hereas

municipal law which is also known as national or %tate law, is applied within a

%tate to the indi#iduals and corporate entities which are the bearers o! rights and

duties there under.

7riginally, the relationship between the two laws was a matter o! theoretical

importance i.e., whether International *aw and municipal law are parts o! a

uni#ersal legal order or they !orm two distinct systems o! law. But at present the

:uestion has ac:uired practical signi!icance as well. $hen there exists a con!lict

between the rules o! International *aw and municipal law, a )ourt is !aced with

the di!!iculty o! arri#ing at a decision. Be!ore an international tribunal, the

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:uestion is one o! primacywhether International *aw takes primacy o#er

municipal law, or #ice #ersa.

I! the con!lict arises be!ore a municipal )ourt, the answer depends on how !ar

the constitutional law o! the %tate allows International *aw to be applied

directly by the courts. Almost e#ery case, in a municipal court, in which a rule

o! International *aw is asserted to go#ern, the decision raises the problems.

9urther, customary rules o! extradition are interpreted and applied by municipal

courts only. It is also be noted that International *aw gi#es an indi#idual certain

rights or obligations which can be en!orced directly in national )ourts as was

alleged in the Pinocliet case.

Generally, the manner in which International *aw is employed in the national

courts o! any particular country is largely determined by the national law o! that

country. In !act, International *aw cannot work without the co>operation and

support o! the national legal systems.

Theories of the relationship

+he #iews o! the "urists on the :uestion o! relationship o! international law and

municipal law are di#ergent which ha#e led to the emergence o! di!!erent

theories. 7! all these theories the most popular are HMonism and H=ualism and

they are diametrically opposed to each other.

1.Monoistic theory:

According to monistic theory, municipal law as well as international law are

parts o! one uni#ersal legalsystem ser#ing the needs o! the human community in

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one way or the other, law is uni!ied branch o! knowledge, no matter whether it

applies to persons or other entities. International obligation and municipal rules

are !acts o! the same phenomenon, the two deri#ing ultimately !rom one basic

norm and belonging to the unitary order comprised by the conception o! law.

+hus, international law and municipal law are concomitant aspects o! one legal

system. +he reasons gi#en by monists are

i. All laws are made !or men and men only in the ultimate analysis. Both

systems regulate the conduct o! indi#iduals, while municipal law does

so immediately, international law, as a matter o! techni:ue does soimmediately-i.e. through states.

ii. In both, the substance o! law is the same i.e. command binding upon

the sub"ects o! law independently o! their will.

iii. Both system ha#e their origin !rom a single basic norm -ground norm

which is the !ountain head o! all laws.

Monism is a #ery sound theory. It exercised a great in!luence upon

international law, because it had close association with natural law. It is #ery

di!!icult to dispro#e the #iew that man lies at the roo! o! all laws. But in

actual practice the states do not !ollow this theory. +hey contend that

municipal law and internatonal law are two separate systems o! law. 9urther,

each state is so#ereign and as such is not bound by international law. %tates

!ollow international law simply because they gi#e their consent to be bound

and on account o! other reasons.

2. Dualistic heory:

o! this theory are +riepel and Anilloti. %tarke is also o! the #iew that

international law ha#e an intrinsically di!!erent character !rom that o! state

law. +he reasons gi#en by =ualists are

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i. +he sub"ect o! municipal law are indi#iduals -sub"ect o! so#ereign,

while the sub"ects o! international law are %tates -so#ereign

themsel#es. Moreo#er, the sub"ect matter o! municipal law is limited,

while that o! international law has always remained dynamic.ii. +he origin o! the two is also di!!erent in as much as source o!

municipal law is the will o! the state, whereas source o! international

law is the common will o! the state.

iii. +he substance o! law is also di!!erent in as much as municipal law is

the command o! a so#ereign -laws enacted by appropriate legislati#e

authorities are to be obeyed, whereas international law is more in

nature o! promises. +hus, while in municipal law there is legal

sanctity, international law is !ollowed because states are morally

bound to accept them.

=ualist theory is sub"ected to many According to dualist theory, International

law and municipal laws o! the se#eral states are two distinct, separate and

sel! contained legal systems. +he chie! exponents criticisms. 9irstly, it is

incorrect to say that international law regulates the relation o! states only. In

the modern period, indi#iduals and other non>state entities are also the

sub"ects o! international law. %econdly, it is incorrect to say that origin or

source o! international law is common will o! the states. +here are certain

!undamental principles o! international law which are binding upon the states

e#en against their will. +hirdly, no doubt, pacta sunt servanda is an

important principle o! international law, but it cannot be said that it is the

only principle on which international law rests. there are certain customary

rules which are legally binding on a state, and in regard to which the states

ha#e not gi#en their consent.

!. heories ha"ing monoistic#dualistic perspecti"e:

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Specific adoption or transformation theory- =ualists contend that rules o!

international law are not automatically applicable in the municipal sphere,

and they become binding on the municipal courts, only i! such rules are

trans!ormed into municipal or state legislation. +hus, international law

cannot be directly en!orced in the !ield o! state law, it can be applied so only

when municipal law either permits it or adopts it speci!ically. +his #iew is

generally !ollowed by states in respect o! international treaties which re:uire

some sort o! trans!ormation be!ore becoming part o! the state law.

+he theory is criticied, as there are many principles o! international law

which are applied in the !eild o! municipal law without speci!ic adoption.

Delegation theory: monists contend that there is delegated to each state

constitutional rules o! international law which permit each state to determine

as to how international treaties will become applicable in the !eild o! state

law. +hus, in !act there is no trans!ormation nor is there speci!ic adoption in

e#ery case. +here is not e#en !resh creation o! the rules o! municipal law.+he theory is criticied, as one may ask where are and what are the

constitutional rules o! international lawJ $hen and how these rules ha#e

delegated power to state constitutionJ 9urther, each state is e:ual and

so#ereign and does not recognise any authority o#er and abo#e it.

Indian Practice

Indian )onstitution under Article K3 pro#ides the general obligations o! India to

the $orld by stating that +he %tate shall endea#our to

-a +o promote international peace and security

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-b Maintain "ust and honourable relations between nations

-c 9oster respect !or International *aw and treaty obligations in the dealings o!

organised peoples with one another

-d Dncourage settlement o! international disputes by arbitration.

+he abo#e Article !orms Part I( o! the )onstitution which lays down the

=irecti#e Principles o! %tate Policy. +he pro#isions in Article C' occurring in

the same Part, though declares that the directi#e principles in Part I( are

!undamental in go#ernance o! the country and it shall be the duty o! the %tate to

apply these principles in making laws, the pro#isions contained therein shall not

be en!orceable in any court. It has been addressed to the executi#es and the

legislatures o! the country, and as such are not en!orceable in the courts.

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same !ooting.

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In&.'.(., )a"alpur v. Shu#la*,Lustice

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InShin Kumar Sharma 3 others v. 4nion of India,052the =elhi

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there has not been any inconsistency between international con#entions and

domestic law.

In 9isha#ha v. State of a/asthan,01*2the %upreme )ourt held that the

international con#entions and norms are to be read into them in the absence o!

enacted domestic law occupying the !ield when there is no inconsistency

between them. In the abo#e case, a writ petition was !iled by certain social

acti#ists and @G7s !or the realisation o! the true concept o! gender e:uality and

to pre#ent sexual harassment o! working women in all work places, through

"udicial process to !ill the #acuum in existing legislation. 8e!erence gi#en to

Article 33 o! the )on#ention on the Dlimination o! All 9orms o! =iscrimination

against $omen which prohibits discrimination against women in the !ield o!

employment i.e., e:uality in employment. It was obser#ed by the )ourt that

e:uality in employment can be seriously impaired when women are sub"ected to

gender speci!ic #iolence, such as sexual harassment in the work place. %ince in

India there is no law to !ormulate e!!ecti#e measures to check the e#il o! sexual

harassment o! working women at all work places, the )ourt held that the

contents o! international con#entions and norms are signi!icant !or the purpose

o! interpretation o! the guarantee o! gender e:uality, right to work with human

dignity inArticles 3/, 3K, 3E-3-g and &3 o! the )onstitution and the sa!eguards

against sexual harassment implicit therein.

Any International )on#ention not inconsistent with the !undamental rights and

in harmony with its spirit must be read into these pro#isions to enlarge the

meaning and content thereo!, to promote in ob"ect o! the constitutional

guarantee. +his is implicit !rom Article K3-c and the enabling power o! the

Parliament to enact laws !or implementing the international con#entions and

norms by #irtue o! Article &KC read with Dntry 3/ o! the ?nion *ist in %e#enth

%chedule o! the )onstitution. +hus, the courts in India may en!orce international

treaties and con#entions which are not inconsistent with Indian laws.

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Application o! International *aw depends largely upon the legislature as well as

"udiciary o! a %tate. +hey are expected to take cogniance and endea#our to

honour the international obligations o! the %tate. It has to be realised by them

that neither municipal law nor International *aw is supreme, but they are

concordant with each other. +hey both ha#e been made to sol#e the problems o!

human beings in di!!erent areas. I! they re!use to accept the rules o!

International *aw, relations between the %tates would ob#iously become tense.

$onclusion

9rom the submissions abo#e, ranging !rom de!initions o! law, characteristics

and purposes to relationship and complimentary nature o! municipal law and

international law, it is clear that both laws possess the :ualities o! law and all

that takes to be called laws. +hey ser#e the same purposes and per!orm

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!unctions o! law because they are meant to regulate conduct, maintain peace,

pro#ide protection, achie#e "ustice, etc. +hey are both en!orceable they ha#e

di!!erent mechanisms o! en!orcement and agencies. +hey are both dynamic in

nature, they are made by competent and recognised authority, etc. As a matter

o! !act, both laws ha#e been able to work towards achie#ing well ordered

societies, which is the ultimate goal o! any law. +here!ore, international law

and municipal laws are real laws.

(ibliography

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