Introduction 

• There are two principal theories on the relationship between international law and municipal law: 
  • Monism 
  • Dualism  
• These are two diametrically opposite theories.   

Monism 

• Kelsen, an Austrian Jurist is the leader of Monist school of law.  
• The Monists hold the view that international and municipal law are a part of one legal system. 
• They contend that both international law and municipal law not only resemble each other but also spring from the same grundnorm or standard which is the fountainhead of all laws. 
• Delegation theory 
  • The Monists support this theory.  
  • According to this theory international law will apply to municipal law without any specific delegation.  
  • According to this theory there is no transformation of international law into municipal law. 
  • The process of creation of municipal law is prolongation of one single act of creation i.e. creation of international norms.  
  • The theory, therefore, attaches primacy to international law over municipal law
  • Hungary v. Slovak Republic (2012)  
    • This case is related to the prohibition of entry of President of Hungary in Slovak Republic. 
    • The judgment was a result of Hungary’s appeal in the European Union (EU) Court against Slovak Republic. 
    • The Court held that the EU law has to be read in consonance with the international law and the international law is the part of EU law. 
    • The Court observed that according to international law the head of state enjoys a particular status in international relations which entails privileges and immunities. 

Dualism 

• The proponents of Dualism are Triepel and Anzilotti. 
• The dualists give primacy to municipal law and consider it superior. 
• Dualists contend that the international law and the municipal law have no relation to each other. 
• They hold that international and municipal law hold a completely different character. 
• Dualists give three reasons in support their stance: 

• Transformation or Specific Adoption Theory 
  • The Dualists support this theory. 
  • According to this theory, international law rules become binding on municipal courts only if they are transformed into municipal legislations. 
  • According to this theory there is a difference between international treaties which is in the form of promises and the municipal legislations which are in the form of commands. 
  • Therefore, there must be a transformation of international law in the form of municipal law. 

Practice Followed in England 

• International Custom 
  • Incorporation Doctrine: 
    • This doctrine was propounded by Sir William Blackstone. 
    • This doctrine emphasized that customary international is deemed automatically to be a part of common law.   
    • This doctrine was favored by the English Courts during 18th century. 
    • However, in 1876 in the case of R v. Keyn (1876), the position changed and the Court held that customary international law could never be British municipal Courts unless they were embodied in the British statute. 
    • The 20th century witnessed a reversion to the doctrine of incorporation with certain exceptions. 
    • In Chung Chi Cheung v. R (1939), the incorporation doctrine was revived with the exception that if there is an inconsistency between the municipal law and the international law the former would prevail over the latter.  
• International Treaties 
  • In England all treaties do not come into force automatically. 
  • There are two classifications done here: 
    • Treaties affecting private rights which require modification of common law or statute must receive Parliamentary assent through an enabling act of Parliament. 
    • Treaties which are not of primary importance do not require legislative action for implementation. 
    • For example, treaties modifying the belligerent rights of Crown when engaged in maritime warfare do not require maritime warfare for their implementation.   

Practice Followed in America 

• International Customs 
  • With regards to international customs the American practice is similar to practice in Britain. 
  • In United States v. Malekh (1960) the Court observed that the international customary norms are a part of law of land. 
  • In Tag v. Rogers (1959) the Court held that international customs cannot be given effect to when they come in conflict with clear and unambiguous statute.  
• International Treaties 
  • American Courts have drawn a distinction between self-executing and non self executing treaties.

• • The question is how to determine which treaty falls under which head. 
  • The necessary consideration here would be intention of the signatory parties and the surrounding circumstances. 

Practice Followed in India 

• International Customs 
  • The doctrine of incorporation propounded by Blackstone is not followed in India. 
  • Article 51 (c) of the Constitution of India (COI) is the guiding light in this regard which provides that the State shall endeavor to “foster respect for international law and treaty obligations.” 
  • However, this does not mean that international law is not given due regard in India. 
  • In the case of Annakumaru Pillai v. Muthupayal (1907), the Supreme Court recognised the existence of historic title on the basis of prescription and acquiescence. Thus, the Court enforced international customary norm. 
  • However, in the case of ADM, Jabalpur v. Shivakant Shukla (1976), the Supreme Court rejected the argument that the Universal Declaration of Human Rights are part of municipal laws. It was held that they are mere ethical rules. However, this was touted to be a fallacious interpretation.  
  • It is to be noted that the much-celebrated dissenting opinion of Justice Khanna in the above case laid down that that where there is a conflict between the municipal law and the international law the former would prevail.  
    • However, in case two construction of municipal law are possible the Court should lean towards the construction that in harmony with international law or treaty obligations. 
  • In Vellore Citizens Welfare Forum v. Union of India (1996), the Supreme Court held that the precautionary principle and the polluter’s pay principle have acquired a character of international custom and hence they are a part of Indian law.  
  • Thus, the Supreme Court treats international custom as a part of Indian law in case there is no conflict between International Law and Indian Law.  
• International Treaties 
  • Constitutional Provisions 
    • Article 246 of the COI provides that the Parliament can make laws on any matter enumerated in the List I of Seventh Schedule. Entry 14 of List I deals with entering into treaties and agreements and the implementation of those treaties and agreements. 
    • Article 253 of the Constitution provides that the Parliament can make laws with a view to implementing the international treaties.   
  • Treaty Making – An Executive Act 
    • In the case of Union of India v. Manmull Jain (1954), the Court held that treaty making is an executive act and not a legislative act. However, legislation may be required to give effect to the terms of the treaty.  
  • Implementation of Treaties in India 
    • On the issue of implementation of treaties, the practice in India resembles both England and the United States. 
    • In India, international treaty calls for legislative cation if it affects application of existing laws, imposes financial obligations or requires specific legislative authority for execution. 
    • The concept of self-executing and non –self executing treaties is also recognized by the Supreme Court in India in the case of Maganbhai Ishwarbhai Patel v. Union of India (1970). 

Conclusion 

The two theories monism and dualism provide for relation between municipal and international law. These theories help in determining the effect of international treaties and customs on municipal laws. These are diametrically opposite theories, and each State follows its own practice.