48

DR. RAM MANOHAR LOHIYA NATIONAL  LAW UNIVERSITY, LUCKNOW  A project submitted for the research work undertaken in the partial   fulfillment of B.A.LL.B. (hons.)-4 (hons.)-4th  Semester course in Public  International Law- I in Faculty of Law, Dr. Ram Manohar Lohiya  National Law University, Lucknow

Submitted By: Deepanshi Chowdhary Roll. No.- 48

Semester- 4

th

Under the Guidance of: Prof. A P Singh Professor of Law,

Dr. Ram Manohar Lohiya Lohiya National Law University University

TABLE OF CONTENTS 1. Introduction 2. Monism 3. Dualism 4. Differences between Monism and Dualism 5. The attitude of International Law to Municipal Law 6. Specific Adoption Theory 7. Delegation Theory 8. Indian Practice 9. Conclusion

INTRODUCTION International Law is the law which governs the relations of sovereign independent States inter se Municipal law or State law or national law is the law of a State or a country and in that respect is opposed to International Law which consists of rules which civilized States consider as binding upon them in their mutual relations. Certain theories have been propounded to explain the relationship between International law and Municipal law. These are Monism, Dualism, and Specific Adoption Theory and Delegation Theory. Of all these theories Monism and Dualism are most popular and they are diametrically opposite to each other. There is a divergence of opinion on the question as to whether International Law and Municipal Law on the various national laws can be said to form a unity being manifestations of a single conception of law or whether International Law constitutes an independent system of law essentially different from the Municipal Law.

MONISM According to monist view law is essentially a command binding upon the subjects of the law independent of their will which is one case is the States and in the other individuals. Further it says that International Law and Municipal Law are two phases of one and the same thing. Monists assume that the internal and international legal systems form a unity. Both national legal rules and international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or illegal. In most monist states, a distinction between international law in the form of treaties, and other international law, e.g. jus cogens is made. International law does not need to be translated into national law. The act of ratifying the international law immediately incorporates the law into national law. International law can be directly applied by a national judge, and can be directly invoked by citizens, just as if it were national law. A judge can declare a national rule invalid if it contradicts international rules because, in some states, the latter have priority. In other states, like in Germany, treaties have the same effect as legislation, and by the principle of lex posterior, only take precedence over national legislation enacted prior to their ratification. In its most pure form, monism dictates that national law that contradicts international law is null and void, even if it predates international law, and even if it is the constitution. From a human rights point of view, for example, this has some advantages. Suppose a country has accepted a human rights treaty the International Covenant on Civil and Political Rights for instance - but some of its national laws limit the freedom of the press. A citizen of that country, who is being prosecuted by his state for violating this national law, can invoke the human rights treaty in a national courtroom and can ask the judge to apply this treaty and to decide that the national law is invalid. He or she does not have to wait for national law that translates international law. In monist view the science of law is unified field of knowledge and the decisive point is therefore whether or not international law is true law. Once it is accepted that as hypothesis that international law is a system of rules of truly legal character, it is impossible according to Kelsen and other monistic writers to deny that the two systems constitute part of that unity corresponding to the unity of legal science. Thus any construction other than monism, and in particular dualism is bound to amount a denial of the true legal character of international law. According to the exponents of Monism International Law and Municipal Law are intimately connected with each other. They are two branches of unified knowledge of law which are

applicable to the human community in some or the other way. In the ultimate analysis of law we find that man is the root to all laws.

DUALISM According to the dualist view the systems of International Law and Municipal Law are separate and self contained to the extent to which rules of the one are not expressly or tacitly received into the other system. In the first place they differ as regards their sources. According to this theory International law cannot be directly enforced in the field of State Law, in order to enforce it in the field of international law it has to be specifically adopted. According to dualists, national judges never apply international law, only international law that has been translated into national law. "International law as such can confer no rights cognisable in the municipal courts. It is only insofar as the rules of international law are recognized as included in the rules of municipal law that they are allowed in municipal courts to give rise to rights and obligations". The supremacy of international law is a rule in dualist systems as it is in monist systems. Judge Sir Hersch Lauterpacht pointed out the Court's determination to discourage the evasion of international obligations, and its repeated affirmation of

the self-evident principle of 

international law that a State cannot invoke its municipal law as the reason for the nonfulfilment of its international obligations. If international law is not directly applicable, as is the case in dualist systems, then it must be translated into national law, and existing national law that contradicts international law must be "translated away". It must be modified or eliminated in order to conform to international law. Again, from a human rights point of view, if a human rights treaty is accepted for purely political reasons, and states do not intend to fully translate it into national law or to take a monist view on international law, then the implementation of the treaty is very uncertain. Differences are significant and the dualist considers that Municipal Law differences markedly from international precepts.

DIFFERENCES BETWEEN MONISM AND DUALISM Monism is referred as oneness and dualism is referred to as two. These two words have many differences in philosophical, psychological as well as legal terms. International law, monism believes that international and national legal systems can become a unity. However, in most of the monist states, there is a clear division between internal and international laws even if the international laws come in the shape of treaties. There is no need f or translating the international law into a national law. Dualism states that there is a difference between internal and international law. Unlike monism, there is a need for the translation of international law into national law. Unless the translation takes place, the international law is not accepted. Moreover, an international treaty is not accepted in dualist state if it is not adapted as a national law.

THE ATTITUDE OF INTERNATIONAL LAW TO MUNICIPAL LAW International law does not entirely ignore municipal law. Municipal law may be used as evidence of international custom or general principles of law, which are both sources of  international law. Moreover international law leaves certain questions to be decided by municipal law; thus in order to determine whether an individual is a national of state X, international law normally looks first at the law of state X, provided that the law of state X is not wholly unreasonable. However the general rule of international law is that a state cannot plead a rule of or a gap in its own municipal law as a defence to a claim based on international law. In other words, all that International law says that is states cannot invoke their internal laws and procedures for a justification for not complying with international obligations. States are required to perform international obligations in good faith, but t hey are at liberty to decide on the modalities of such performance within their domestic legal systems. Similarly there is a general duty for states to bring domestic law into conformity with obligations under international law. But international law leaves the method of reaching this result. They are free to decide how best to translate their international obligations into internal law and to determine which legal status these have domestically. On this issue in practice there is a lack  of uniformity in different national legal systems.

SPECIFIC ADOPTION THEORY

According to the positivists, international law cannot be directly enforced in the field of State Law. In order to enforce it in the field of Municipal law, it is necessary to make its specific adoption. In short international law can be applied in the field of Municipal law only when Municipal law either permits or it adopts it specifically. This view is generally followed by States in respect of International Treaties. It is argued that unless there is a specific adoption of the International Treaties or there is some kind of transformation, International Treaties as such cannot be enforced into the municipal field. While considering the International Covenants on Human Rights, the Supreme Court of India observed in George v. The Bank of  Cochin, „the positive commitment of the State Parties ignites legislative action at home but does not automatically make the covenant enforceable part of the corpus juris of India TRANSFORMATION THEORY

The exponents of this theory contend that for the application of International law in the field of Municipal law, the rules of international law have to undergo transformation. Without transformation they cannot be applied in Municipal Law. This theory is based a consensual theory which has already been criticised. It may also be noted that it is not necessary for all treaties to undergo the process of transformation for their application in the field of municipal law. There are several law making treaties which have become applicable to the States even without undergoing the process of transformation. It is incorrect to consider that transformation from one to another is materially essential.

INDIAN PRACTICE IN INTERNATIONAL LAW AND MUNICIPAL LAW

Indian Constitution under Article 51 provides the general obligations of India to the World by stating that: The State shall endeavour to: (a) To promote international peace and security (b) Maintain just and honourable relations between nations (c) Foster respect for International Law and treaty obligations in the dealings of organised peoples with one another (d) Encourage settlement of international disputes by arbitration. The above Article forms Part IV of the Constitution which lays down the Directive Principles of State Policy. The provisions in Article 37 occurring in the same Part, though declares that the directive principles in Part IV are fundamental in governance of the country and it shall be the duty of the State to apply these principles in making laws, the provisions contained therein shall not be enforceable in any court. It has been addressed to the executives and the legislatures of the country, and as such is not enforceable in the courts. However, directive principles are fundamental in governance of the country to implement them by making laws. Thus, the Indian constitutional policy is committed to promote international peace and security and also to foster respect for International Law and treaty obligations and to apply these principles in making laws. No conclusion can be drawn from the Article 51 as to how far rules of International Law shall be applied by the courts. Article 51 is simply a pledge that India will work for the promotion of international peace and security, enhancement of International Law and treaty obligations and settlement of international disputes by peaces means. This Article has been implemented by the executives through the foreign policy of India. However, wordings of the Article 51 make one thing clear, i.e. reference of the words „International Law‟ and „treaty obligations‟ implies due the former refers to customary International Law. It may mean that Article 51 treats customary law and treaty law at the same footing. However, be application of  customary International Law and treaties have been discussed separately.

(a) Customary International Law — As far as the application of customs International Law is concerned; it appears that Indian Courts follow the doctrine of incorporation, as adopted in Great Britain. Thus, Indian courts would apply customary rules of International Law, if they are not overridden by clear rules of domestic law[2]. If they are in conflict with the domestic law, courts shall apply domestic law. In Shri Krishna Sharma v. The State of West Bengal, the Calcutta High Court stated that the Indian Courts would apply rules of internal law which includes (a) the Constitution of India, (b) the Statute enacted by the Parliament of India, and (c) the Statutes enacted by the State Legislatures. The Court held: “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 irreconciable .] ”

In A.D.M., Jabalpur v. Shukla, 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. However, in some cases the Supreme Court applied the rule incorporation, i.e., customary rules of International Law was applied when were not inconsistent with the domestic law. In Gramophone Company of India Ltd. v. Birendra Bahadur Pandey [6] , the observations of  the Supreme Court relate to the binding force of the customary rules of International Law. From the decision of this case it was made clear that the Indian Courts shall apply customary International Law in India to the extent they are not i nconsistent with the municipal laws.

(b) Treaties. — As to treaties, it is submitted that they shall not be binding upon Indian Courts unless they have been implemented by legislation. Basu says that „no treaty which has not  been implemented by legislation shall be binding on the municipal courts‟. The above view is based on Article 253 of the Constitution which says that Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement

or convention with any country or countries or any decision made at any international conference, association or other body. ,

In Birma v. State of Rajasthan ,]the Court held that “Treaties which are part of  International Law do not form part of the law of the land unless expressly made so by the legislative authority”. In Shin Kumar Sharma & others v. Union of India, the Delhi High Court held: In India, treaties do not have the force of law and consequently obligations arising therefrom will not  be enforceable in municipal courts unless backed by legislation‟. Instances of other cases wherein the above principle has been followed are:  Motilal v. U.P. Governments, Maganbhai v. Union of India, Nirmal v. Union of India, and Jolley George Verghese v. Bank of  Cochin. In these cases it was held that legislative power exclusively belongs to Parliament.

They relied on Article 253 of the Constitution which says that Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any country or countries or any decision made at any international conference, association or other body. In Bangalore v. Union of India] , the question was as to whether Boycott and Cook, the two cricket players shall be allowed to visit India and to play cricket matches as members of the English Cricket Team against India in view of their links with South Africa which was practicing the policy of apartheid. In this case the court observed that: “if the Parliament does not enact any law for implementing the obligations under a treaty entered into by the Government of India with foreign countries, courts cannot compel Parliament to make such such law the absence of such law, Court cannot also enforce obedience of the Government of India to its treaty obligations with foreign countries. ”

The above view is consonant with the dualistic theory according to which a treaty becomes a part of the law of the land only after its transformation into that law by the legislative process. However, in a few cases, especially in relation to human rights, international conventions have been taken into account by the courts where it was found that there has not been any inconsistency between international conventions and domestic law. In Vishakha v. State of Rajasthan, the Supreme Court held that the international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. In the above case, a writ petition was filed by certain social activists and NGOs for the realisation of the true concept of gender equality

and to prevent sexual harassment of working women in all work places, through judicial process to fill the vacuum in existing legislation. Reference given to Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women which prohibits discrimination against women in the field of employment i.e., equality in employment. It was observed by the Court that equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment in the work place. Since in India there is no law to formulate effective measures to check the evil of sexual harassment of working women at all work places, the Court held that the contents of international conventions and norms are significant for the purpose of  interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote in object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of the Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Thus, the courts in India may enforce international treaties and conventions which are not inconsistent with Indian laws.

CONCLUSION

In many countries the law sometimes will fail to reflect the correct rule of international law. But this does not necessarily mean that States would be breaking International Law. Very often the divergence between national law and international law simply means that the respective State is unable to exercise rights which International Law entitles but does not require the State to exercise. Even when a rule of municipal law is capable of resulting in a breach of international law, it is the application of the rule and not its mere exercise which normally constitutes the breach of international law consequently, if the enforcement of the rule is left to the executive which enforces it in such a way that no breach of International law occurs, all is well. Application of International Law depends largely upon the legislature as well as judiciary of a State. They are expected to take cognizance and endeavour to honour the international obligations of the State. It has to be realised by them that neither municipal law nor International Law is supreme, but they are concordant with each other. They both have been made to solve the problems of human beings in different areas. If they refuse to accept the rules of International Law, relations between the States would obviously become tense and the high ideals of maintaining international peace and security would begin to look like utopian.

BIBLIOGRAPHY

WEBSITES REFERRED

1. http://www.shvoong.com/law-and-politics/international-law/499254-relationinternational-law-municipal-law/  2. http://journals.cambridge.org/action/displayAbstract;jsessionid=04857442DA69F04E273 084B134A9AB34.tomcat1?fromPage=online&aid=1519620 BOOKS REFERRED th 1. M P Tondon, „ Public International Law’ (16 Ed, Allahabad Law Agency,2005.) nd

2. S K Kapoor, „  International  Law and Human Rights’  ( 2

Ed, Central Law Agency,

2002.) st

3. Gurdip Singh, „ International Law’ ( 1 Ed, MacMillan, 2003.) th

4. Ian Brownlie, „  Principles of Public International Law’ ( 7

Ed, Oxford University

Press, 2008.) th

5. Peter Malanczuk, „  Modern  Introduction to International Law’  (7 2007.)

Ed, Routlegde,