PROJECT REPORT ON

INTERNATIONAL LAW AND MUNICIPAL LAW

SUBMITTED BY:-

SHASHI KUMAR BBA.LLB ROLL NO.-1047 SMESTER:-FIRST

SUBMITTED TO:-

MR. NITEESH KUMAR UPADHYAYA

INTRODUCTION:Every society, whether it is large or small, powerful or weak, has created for itself a framework of principles within which to develop. What can be done, what cant be done, permissible acts, forbidden acts, have all been spelt out within the consciousness of that community. This particular framework is known as law. It is the element which binds the community together in there adherence to recognize values and standards. It is both permissive in allowing individuals to establish their own legal relations with rights and duties, as in the creation of contracts, and coercive, as it punishes those who infringe its regulations. Law consists of a series of rules regulating behavior, and reflecting, to some extent, the ideas and preoccupations of the society within which it functions. Based upon the working and compatibility of law, it has been basically classified as Municipal law and International law. The law prevailing or acting within a country is known as Municipal law. The principal subjects of international law are nation-states.. There are many contrasts between the law within a country (municipal law) and the law that operates outside and between states, international organizations and, in certain cases,individuals .International law itself is divided into conflict of laws (or private international law as it is sometimes called) and public international law (usually just termed international law)1. The former deals with those cases, within particular legal systems, in which foreign elements obtrude, raising questions as to the application of foreign law or the role of foreign courts2.

1 2

J.BENTHAM, Introduction to the Principles of Morals and Legislation,1780,london C. CHESIRE and P. NORTH,Private International Law ,13edition,1999,london

RESEARCH METHODOLOGY:The researcher has primarily relied on the Doctrinal Method. The research is based on comprehensive study of online journals, documents, Books and cases. Uniform citation method has been used throughout the project report.

OBJECTIVES OF STUDY:_
The objective of the research is to find out the theories on relationship between municipal law and international law. Theories on application of international law within municipal law.Municipal law before international tribunals and international law within the spheres of municipal law.

HYPOTHESIS:Municipal law functions inside a country or state and is used to solve dispute between parties of the same countries while international law functions over global world and is used to resolve disputes between states and countries not between individual and state.

RESEARCH QUESTIONS:1. How international law and municipal law are related? 2. What are the different theories on relationship between international law and municipal law? 3. How does municipal law is treated along with international law and vice-versa?

CHAPTERISATION:1. Deals with introduction on relationship between municipal law and international law. 2. Deals with theories on relationship. 3. Deals with theories on application of International law within municipal law. 4. Deals with Municipal law before International tribunals or courts. 5. Deals with International law within municipal sphere or law.

CHAPTER:-1 INTRODUCTION ON RELATIONSHIP

Very often municipal courts have to deal with the situations where the rules of international law are needed, both where such rules exist and where they not at variance with municipal law. In the same way International tribunals or courts can be called upon to determine the precise status and effect of a rule of Municipal law, if the party to the case has relied upon the rule or the case has some characteristics or connotations of municipal law. There may be situations which require

theoretical analysis and determination of the limits between international law and municipal law. In the cases in which there is conflict between municipal law and international law, the question of primacy or superiority , whether international law takes precedence over municipal law or municipal law takes precedence over international law, becomes important for the decision. Beside this, the question of primacy before municipal court is determined mainly by the constitutional law of the state. But the questions that arises are: is the International rule directly applicable and effective under municipal law or domestic law? Does a treaty prevail over conflicting domestic law? International law doesnt prescribe or talk about how international rules should be enforces at national or domestic level. National constitution can chose how to apply these rules. Therefore it becomes

important for a international lawyer to be well acquainted with relationship between municipal law and international law.

CHAPTER:-2 THEORIES ON RELATIONSHIP

Monism and Dualism; these are the two principal theories which have been laid down by the scholars on the relationship between these two; municipal law and international law. International law and municipal law are the components of one legal system-this is being given by the Monism. But according to Dualism, they represent two completely distinct and self-contained legal system to the extent to which the rules are not expressly received in each other. The application of international law within municipal law is being explained by these two theories. Now, MONISM:-this theory tells that both international law and municipal law have same origin from the natural law which treats equally the states and the individual. Therefore they are same and forms a part of that part of jurisprudence which bind all human beings alike. Conduct of individuals in the society is being governed by these two, the basic difference is one regulate immediately and other mediately , though result of such conducts are attributed to the state under International law. They treats law as single unified field of knowledge which consist of rules, whether binding on states, individuals or on entities other than states .whether international law is a true law is a decisive point. There is no intrinsic difference between these two when it is accepted as a true law.The chief protagonist of this theory is Kelsen. Lauterpacht, Fitzmaurice and Starke3 are among the other

J.G. Starke, 17 Bybil, 66 (1936)

supporters. According to them, since the behavior of the state is reducible to the behavior of the individual representing the state, so the alleged difference in subject matter between the two systems cant be consideredas a difference. There is no conflict between international law and municipal law and they operate smoothly within their specified spheres. Therefore the question of supremacy doesnt arise. National organs doesnt act according to the norms of the international law is a fact which indicates the weakness of the theory but it doesnt indicate that validity of theory is not there. DUALISM:-This theory comes from the positive law school which emphasized on the will of the state as the sole criteria for the creation of rules of international law. According to this theory, municipal law and international law operates on different levels, International law regulates in between sovereign and state while municipal law operates between individual and state. The chief exponent of this theory areTripel and Anzilloti4. According to the supporters of this theory, the basic difference between the two lies in their subject matters, sources and judicial origin. States are generally the subject matter of international law and individuals are the subject matter of municipal law. The sources of international law are mainly customary and treaty rules whereas legislative enactments and judge-made laws are the main source of municipal law.The common will is juridical basis of international law and state will is of municipal law. However doubts have been raised against this type of approach. The subject matter of modern international law are not only states but international organisations, individuals and other nonstate entities are also bound by it. Moreover, to attribute will to state and common will to source of international law is totally misleading and fails to answer the

Fitzmaurice considers that Anzilotti has been wrongly labeled as dualist.

question that under what circumstances an expression of common will can become decisive. Now, QUESTION OF PRIMACY:-Now the question arises that where does primacy lies, in municipal law or in international law. therefore jurist tried to answer this question. Dualist ascribe primacy to municipal law over international law as according to them state is independent and enjoys widest liberty. On the other hand , monists are divided on this issue. Some of them ascribe primacy to the international law. But kelsen who was the chief exponent of this theory ascribe the primacy tot the state law because in his opinion , the choice between the two could not be made in the strict scientific way. According to stark which was also a monist , primacy lies with international law.

CHAPTER-3 THEORIES ON THE APPLICATION OF INTERNATIONAL LAW WITHIN MUNICIPAL LAW

From the two theories on jural relationship between international law and municipal law and on the question whether international law may be applied within municipal law, two theories have been propounded. They are (1)Transformation or specific adoption theory, and (2)Delegation theory These theories are in fact the manifestation of the theories of dualism and monism.Now, TRANSFORMATION THEORY:According to the philosophers of positive law school , municipal law is logically a complete system. The rules of international law cant be enforced upon the

municipal law unless they go under the transformation and is adopted by the state law. There is no automatic application. Each state will determine its own parameter to apply the rules of the international law. These rules can be transformed can be transformed into national laws and then it can be used in the municipal courts. Positivist observe treaties as promises and municipal statutes as commands. They argued that to make the treaties binding upon the municipal laws,their transformation is important and necessary. Monists criticized this theory on the ground that it presupposes consensual character of international law in contrast to the non-consensual nature of municipal law. The distinction between treaties and statutes is merely on the basis of form and procedure, but the real object of both is same. DELEGATION THEORY:-Monists,critics of the transformation theory argues that there is no need of transformation and if there any conflict arises between the two, the international rule prevails. Application of rules of international law in the sphere of municipal law is continuation of one single process which initiates with creation and acceptance international law rule by state. The constitutional rules of international laws provides to the state constitution that how to make the treaties effective under municipal law. There is no indication that either of the theories is perfect. They only throw a small bit of light on the application of international law and doesnt talk about the relation between international law and municipal law. Practice of international tribunals and municipal court suggests that it is a mixture of international law supremacy, municipal law supremacy, and coordination of legal system that exist.5

Edward Collins(ED), International law in a changing world ,Random house, newyork,1970

It is not good to divide the state just into Monist or Dualist groups, there are many other ways of giving effect to international law through national legal systems. The constitution of the state is the starting point that how the rules of international law will be applied at the domestic level. This is not uniform through-out the nations.

CHAPTER:-4 MUNICIPAL LAW BEFORE INTERNATIONAL TRIBUNALS

Whenever there is a dispute that whether a state is in breach of international law before international tribunal, it is normally expected that international laws would be preferred over municipal laws of the states involved in litigation. For the ignorance of the international law, state cant give municipal law as an excuse for its failure to observe international law. Article 13 of the draft declaration on rights and duties of states lays down: every state has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution, or its laws for failure to perform this duty.6Articles 27 and 46 of the 1969 vienna convention on law assures the rule that state cant appeal its municipal law for non -observance of treaty obligations.7 There is sufficient or ample judicial and arbitral authority for the rule that you cant do away with international law by using mere defense of municipal law. The ALbama Claim Arbitration ( united state vs. Great Britain )8 of 1872 is a well known authority on this matter. During the American civil war, a no. of ships
6 7

II YBILC, 286 (1949) Art. 27 of the Vienna convention: Internal law and observanc e of treaties A party may not appeal the provisions of municipal laws or internal laws as justification of its failure to perform the treaty. This rule is without prejudice to article 46. Art. 46 states that a state cant invoke the violation of a provision of its internal law as a ground to invalidate its consent to a treaty. Unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 8 J.B. Moore, op. cit.5

werebuilt for private owners which was done keeping the view in the mind to harm the American federal maritime trade. These raiders of which albama was most famousDid a considerable damage to American. then America brought a claim for compensation before arbitral tribunal arguing that great Britain has violated its obligation as a neutral state by allowing the construction and sailing of the shipyards under the so called Three rules of Washington that set out duties for neutral and were accepted by both the parties. In the defence that it was bound by its constitutional law not to interfere in private construction. The international tribunal rejected this plea. It was held by the court that The government of her Britanic majesty cant justify itself for a failure in due diligence on the plea of insufficiency of the legal means of action which it possessed. I n order to escape the liability, a neutral government must take care.that its municipal law shall prohibit acts contravening neutrality.9It is expected that the state which has contracted valid international obligations would made required enactments in their constitution or legislation to regulate those contracts and carry out such obligations.10 A state quite often raise the municipal law as an excuse to the breach of duty to carry the international obligations when it is being complaint by the other states. The international doesnt says that national laws are invalid but it discard the plea on the ground that way in which the national laws have been used are inconsistent with the international law. In the lagrand case,11 the issue before the international court of justice was the violation of article 36 of the Vienna convention on consular relations by the united states, which failed to give timely notification to two German national of their right to consular protection.12
9

See the Finnish ship arbitration, UN RIAA, vol. 3 See the case of exchange of greek and Turkish population, PCIJ rep.,series B , no. 10,1925 11 Germany vs. united state of America ,ICJ reporter,2001 12 Art. 36(1) provides that consular officers of the sending shall be free to have communication with its national and have access on them , the competent authorities of the receiving state shall provide the information without any delay to the consular post of sending state if, someone , a national of sending state, is detained under its consular
10

Despite of the order of the court asking the united state to take all measures at its disposal to stay Lagrands execution until the case has been decided. After that, arguing on merit, Germany stated that united state constitutional rule of procedural default pleaded by united states violated its international obligations under article 36 of the Vienna convention , which required the united state to give effect to the purpose for which the right of notification and consular access are intended. There after court rejecting the united state contention that by pronouncing on the application art. 36, the court was acting as court of appeal of national criminal proceedings , observed that rule of procedural default doesnt viol ate art. 36 of the Vienna convention. Many times International tribunals comes across the cases which are completely depend upon municipal laws13 or municipal law concept.14 Then international tribunals have the option to consider the municipal law ,on the basis of international law to settle the dispute. In some cases permanent court of international justice observed that while deciding the cases on the basis of international rule,it has also the duty to determine any fact which established would constitute a breach of an international obligation.Accordingly primacy to the international law in case of conflict between a states municipal law and its international obligations, doesnt amount to invalidation of municipal law rule.

CHAPTER:-5 INTERNATIONAL LAW WITHIN MUNICIPAL SPHERE

In the context of monism and dualism , state practice international law. But there is a conflict on the point that up to what extent these law should be applied in

districts or held for trial or committed to prison or to pending trial. The consular officers have right to visit its national who is in prison and provide him legal help. 13 For example, Brazilian loan case(France vs. Brazil) PCIJ rep., series A, No. 21,1929 14 For example, Barcelona traction power and light co. case(Belgium vs. spain),ICJ rep.,1970

municipal spheres. To have a broader concept about these things, distinction has been made between customary and treaty rules of international law. For this purpose the state practice six states, i.e., the United Kingdom, the United states, France, Russia and India has been discussed. THE UNITED KINGDOM 1. CUSTOMARY INTERNATIONAL LAW As we all know that United Kingdom doesnt have a written constitution but the parliament is the supreme authority in making law of the United kingdom. The conclusion and termination of treaties and the conduct of foreign affairs is carried out by the government which is responsible to the parliament for the conduct of foreign affairs. CUSTOMARY INTERNATIONAL LAW:- The customary international law in the courts of Britain has undergone an evolution since the eighteenth century when sir William blackstone proposed the blackstonian doctrine which is generally known as incorporation doctrine. According to him the law of nation is here adopted in its full extent by the common law, and is held to be a part of the law of land. 15 This doctrine was applied by the courts of Britain in eighteenth century16 And the subsequent decisions cleared the point that courts will give effect to setteled rules of international law as a part of English law.17 However the latter part witnessed a departure from from the doctrine of

incorporation to the doctrine of transformation. In R.v. keyn( the franconias case), a german ship collided with a British vessel less than three miles from the English
15 16

Commentaries, Book IV , ch.5,quoted in D.W. Greig, international law, 2 nded.,butterworths, London ,1976,p.55 Burnt v.Barbuit (1737) cases temp. Talbot 281; Triquetv.Bath(1764) 3 Burr. 1478, Lord Mensfield remarked that the Law of nations,in its full extent , was part of the law of England; Heathfield v. Chilton (1767) 4 Burr. 2015 17 Emperor of Austria v. Day and kissuth (1861) 2 Giif. 628.

coast which resulted in sinking of the British vessel with the cost of one life. The german master of the Franconia was charged for manslaughter. The issue before the court was whether English court has jurisdiction over such an incident occurring within the british territorial of water. In the judgment the court didnt followed the incorporation doctrine and held that English courts had no juridisction over crimes committed by the foreigners within the maritime belt extended to three miles from the british coast, although such a right existed under customary international law. The rule was not applicable ex proprio vigore, but it was the parliament to legislate. This decision of the court was subsequently reversed by the Territorial water jurisdiction act, passed by the parliament in 1878. There was a partial return of the incorporation doctrine in the west rand gold mining co. v. R. The Privy Council carved important qualifications in the incorporation doctrine in the chung chi cheng v. The king. In the current judicial practice on customary international law, the incorporation doctrine doesnt find a blanket application.18 Even if a crime is recognized in customary international law and will be assimilated into the domestic law,but that will not be automatically binding upon the courts. Once a rule has been generally accepted by the international community, it will be deemed to be part of british law subject to the qualification that:1. Such a rule is not inconsistent with any british statute whether the statute was earlier or later than the customary rule.

18

In thakkar v. secretary of state for the home office (1974) QB 684(C.A.), lord Denning clearly followed the transformation approach, but adopted the incorporation approach in trendtex trading corporation v. central bank of Nigeria (1977) QB 529 (C.A.). The doctrine of incorporation was also followed in J.H. rayner(mining lane) ltd. V. department of trade and industry,(1990) 2 AC 418, at p. 500

If the highest court once determines scope of such type of a rule, then it will be binding on all the courts in Britain even though a new rule has emerged in its place. Apart from these two qualifications to the automatic adoptation of the customary international law by British courts, the courts also deny the direct application of the international law in matters related to the following situations:1. Acts of the state, such as declaration of war or cessation of territory, irrespective of violation of international law. 2. The crowns prerogative, such as granting of recognition to states or governments, or diplomatic status or immunity to certain persons, cant be questioned in courts, which are bound by certificate or authoritative statement on behalf of the executive , even if they are in contravention of the rules of international law.19 Notwithstanding with the above exceptions the British courts are generally inclined towards giving effect to international law. 2.TREATY PRACTICE:While it is possible to regard the customary international law as a part of the British law or English law, subject to certain limitations, the position of treaty rule is quite different. The making of a treaty is right of the crown and a treaty duly ratified by the crown is binding on Britain internationally, but in order to have internal effect the treaty requires enabling legislation by parliament.
19

On request from the court or from a party to litigation, on these matters, the foreign and commonwealth issues certificates

Earlier in the parlement bledge it was clearly established thst a treaty cant affect private rights unless bit has been made a part of the british law by an act of parliament. Making of treaty is an executive act an its performance is an act of legislation, this point was further clarified in attorney general for Canada v. attorney general for outario. On the basis of the judicial precedents as to treaty practice, the position can be concluded as following points:1. Treaties dont bind the british courts ipso facto. Legislation is required in order to create the internal effects. 2. Treaties which affect the private rights of british subjects or involve any modification of common law or statute law of England or create additional financial burden on the government for their implementation or invest the crown with additional powers should receive approval through an act of parliament. 3. Treaties, made subject to the approval of parliament, for their application are usually so approved in the form of statute law. 4. Treaties relating to the belligerent rights of the crown or informal, administrative arguments, not involving the alteration of the municipal law do not require any legislation.

THE UNITED STATES CUSTOMARY INTERNATIONAL LAW

While talking about the matter of customary international law, the practice in united states is similar to the british practice and no specific incorporation is required by the congress. The customary international law is applicable in United

States20 in the absence of executive or legislative act or judicial decision. Determination of international law by supreme court, including reviews of state laws on grounds of inconsistency with international law, are binding on states and states courts. Where a conflict arises between customary rule of international law or a statute, in case of clear and unambiguous language, the statute prevails, otherwise harmonious construction is accorded.21 Under the judicial practice of us, courts give great weight to the views expressed by the US government of question on international law. In the modern context, customary international law in the US is federal law and its determination by the federal court is binding on the state courts.22International law is regarded as subject to the constitution and courts will not give effect to a rule of international law which conflicts with united states constitution.23

TERATY PRACTICE
The united state treaty practice is different from the british practice. According to the American constitution, the president has power to make treaties on the advice and consent of the senate, provided two third of the senators present concur (art. II, sec. 2). The constitution also lays down (Art. VI, Para. 2) that all treaties made or which shall be made, under the authority of the united states, shall be 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. Thus the constitution places treaties on equal footing with federal statutes. In situation

20 21

United states vs. malekh, 1960 The over the top, 1925 22 Restatement of the foreign relations law of the united states, vol.1,p. 91, 1987 23 Tag vs. rogers, 1959

where act of congress and act of treaty are in conflict, the latter instrument will repeal the earlier so far as the two are inconsistent.24

RUSSIA
Under article 15.4 of the 1993 constitution of Russia, the generally recognized principles and norms of international law and treaties of the Russian federation constitute part of Russian legal system. If an international treaty of Russia conflicts with any law, the rules of international treaty will apply. Thus, the constitution gives clear priority to both customary international law and treaties in force for Russia over both earlier and national laws. Russian courts are increasingly applying principles of international law directly, particularly on human rights. But the international law doesnt get priority over the Russian constitution. The constitutional court can review the compatibility with the constitution of any treaty not yet in force for Russia. Power to conclude treaties rests with the president of Russia (Art. 876). Article 106 provides for both chambers of parliament (the Duma and the federal council) to give consent to treaties by federal law. The meaning of this provision is not very clear , but to have the binding force in Russian law, a treaty needs to be published.25

INDIAN PRACTICE
CUSTOMARY INTERNATIONAL LAW
The constitution of India, adopted on January 26, 1950, have certain provisions with direct bearing on international law. The important provision is Art. 51(c) which reads; the state shall endeavor to. (c) foster respect for international
24 25

Edyey vs. Roberston, 1884 Eileen Denza, The Relationship between International law and National law, 2 nd edition, P. 432, oxford university press, 2006

law and treaty obligations in the dealings of organized people with one another .. Reference of the words International law and treaty obligations implies that the former refers to the customary international law.26 But this interpretation doesnt make international laws nor the treaties part of internal law in the sense of incorporation or Blackstonian doctrine. Since article 51 falls under part IV of the constitution (Directive principles of the state policy), the provision is not binding upon the court or enforceable by any court, though the directive principles are the fundamental in the governance of the country (Art. 37). The government is thus committed to foster respect for international law and makes law in furtherance of that.27 But art. 51(c) is too general and no conclusion can be drawn from it that how international law shall be applied in the courts. Before the adoption of the constitution, the british doctrine of incorporation with certain qualifications as prevailing in Britain was followed in India. This practice still continues in India by virtue of Art. 372(1) of the constitution28 as evident in the judicial practices. The case of Krishna Sharma vs. The state of Bengal29 reflects the true Indian position regarding enforceability of international law at judicial level or municipal level. The Calcutta high court state the Indian courts would apply rules of international law which include: (a) The constitution of India (b) the statutes enacted by the parliament (c) Statutes enacted by state legislatures (thus leaving outside the judge made laws).it was observed by the honorable court that: If the ( Indian statutes ) are in conflict with any principle of international law.municipal courts of india have got to obey the laws passed by the

26

C.H. Alexondrowicz, International Law In India, ICLQ, p.252, 1952; M.K. Nawaj, International law in Contemporary Practice Of India, p.278,1960 27 S.K.Agrawal, Indias Contribution to the development Of International law R.P. Anand (Ed.), Role of Indian Courts, In Asian states and development of international law, p.73,1977 28 T.K. Varred v. state of Travancore-coachin, AIR 1956 SC 142 29 AIR 1954 cal. 591

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 into conflict with rights and obligations deducible from rules of international law. If such rules or rights and obligations are inconsistent with the positive obligations of the municipal law; the municipa l courts cant override the other.30 In Gramophone company of India vs. Birendra bahadur pandey, 31 the supreme court accepted yhe binding force of international customary law with certain qualifications. Thus; it is a well settled practice in India that the courts apply international law to the extent they are not inconsistent with the municipal law and are not overridden by the clear rules of domestic law.32 There is no concept of doctrine of incorporation in India, except finding its basis in art. 372, though the article has not been referred by courts in its judgments. There is also no judicial authority on the issue that whether the customary international law will be binding where there is no controlling statute, executive decision or treaty.

TREATY PRACTICE
The constitution of India doesnt give any clear direction on treaties as found in United States and French constitution. It however, follows the British approach, namely that treaties are not a part of internal laws unless specifically so adopted. But unlike Britain, India has a written constitution and it contains numerous provisions which have bearing on treaty making and treaty implementation. The relevant provisions are Arts. 51,53,73,77,246 read along with entries 10, 13 and particularly 14 of list I of seventh schedule, as well as Art. 253. The parliament has the exclusive powers to legislate the realism of treaty. Treaty making is an

30 31

Maharaja sikram kishore of Tripura vs. province of Assam, AIR 1976 SC 1207 AIR 1984 SC 667 32 D.D Basu, shorter constitution of India , 12th ed., p. 327, 1996

executive act, exercised by the president by the virtue of Art.53(1)of the constitution. The treaty practice in India can be summed up as follows: 1. The union executive ha the unfettered authority to enter into treaties and agreements with foreign countries, but the power is to be exercised in accordance with the constitution. 2. For the implementation of treaty, parliament assent through enabling act is necessary where treaty: (i) affects the rights of Indian citizens or (ii) modifies the law of the state or (iii) creates financial obligations for the government.33 3. Treaties involving the cession of Indian territory can only be effected through a constitutional amendment. However, no parliamentary sanction in the form of legislation is required to give effect to treaties relating to boundary settlement. 4. Treaties in conflict with part III of the constitution (fundamental rights) shall be null and void. 5. If a treaty conflicts with a municipal statute, the statute will prevail.

33

Motilal vs. state of u.p, AIR 1951 AIL 257 State of west Bengal vs. Jugal, AIR 1969 SC 783