International Law and Municipal Law
The state plays a
vital role in the governance of the country. Learn about the International and
Municipal Laws with its theories in this article.
The state plays a
vital role in the governance of the country. Traditionally, the state’s defined
role had merely local laws to govern the state. The laws were only limited to
protecting the citizens of the country. But, as there was the evolution of
societies, international laws also became necessary for the society to make
cordial relations with them.
Therefore, the state’s
role became complex and not limited to the inner administration. It has to
reduce rivalries among various states as there is massive interdependence among
the states as a part of globalisation. So, all these factors lead to the emergence
of international laws. So, all these factors lead to the emergence of
international laws. But, at the same time, there emerged a conflict as to which
law is superior and which is to be overruled. We must understand the
relationship between international and municipal laws for this answer.
What is International Law?
International laws are
a set of rules, regulations, norms, and principles for a state accepted
internationally as a guideline for a state to interact with another state in
various sectors such as war, diplomacy, human rights, trade, and other matters. In
other words, according to Black Law’s Dictionary, it is a system that governs
the relationship between nations which considers individuals and international
organisations. Some international laws are Sea law, Treaties among the
countries, international laws for criminals, and many other laws.
There are two branches
of International Law:
- Jus Gentium: It is a body or
organisation that makes the law applicable to all the nations of the
world.
- Jus Inter Gentes: It is related
to the agreements between two nations that do not apply to other
nations.
What is Municipal Law?
According to Black
Law, it is the ordinance and laws applicable in the city, town, and other local
entity of the society. Therefore, a municipal law is considered a local or
national law applicable within a defined territory. It is for the domestic and
internal purposes of a sovereign state against the essence of international
law.
Relationship between International and Municipal Laws
It is always essential
to study the relationship between international and municipal laws because
there are some instances where international law becomes a part of domestic
law. So, if such a situation arises, which rule must be followed? To explain
such a situation, you must understand the relationship between these two laws,
and for this, there are some theories.
Dualism
Dualism is a theory
that considers local or municipal law and international law as two different
branches of law. According to this theory, as per their sources, principles,
and subjects, these two laws must act independently. It stresses the rules that
international and municipal law exists in two different scenarios, and
therefore they do not overrule each other.
According to the
dualism theory, any international law cannot affect an individual from the
state until it has been transformed into a state or domestic law. The
transformation of such laws is the crucial doctrine of dualist
theory.
Monism
As the name suggests,
the monist approach considers laws as a single entity, and they are against the
idea of separating these two branches as international and municipal laws. The
monist theory is based on the Kantian philosophy of law which follows the
unitary conception for laws. It says that the laws are derived from one single
source, and any local or domestic law contradictory to international law is
invalid. It does not believe in the claim of dualism that there is a need to
transform international law into municipal law.
The example for this
claim is that if a state has ratified the international law of human rights,
and any municipal law violates an individual’s freedom, that person can claim
that the municipal law violates the international law. So, in this case, the
municipal law will be considered invalid, and international law prevails. This
theory always considers international law superior to municipal laws, and if
any conflict arises between these two laws, international law will
prevail.
Specific Adoption Theory
This theory is related
to the dualist theory. It claims that international laws can only be applied in
domestic laws when adopted explicitly by domestic laws. There is a requirement
for the transformation of international law into municipal law.
Delegation Theory
This theory explains
that there are constitutional provisions in international laws, which claims
that it is on the state to decide which international law must be applied to
the internal matters of the state or individual and in which condition. So,
here the power is in the state to decide which international law is applicable
in its municipal law. There is no superiority concept in this theory.
Harmonisation Theory
It is a separate
approach from the dualist and monist approach. It was formulated by Rousseau
and Fitzmaurice, who tried to explain that each law is supreme in its sphere.
The dualist and monist theory does not successfully define the relationship
between international and municipal laws as to which law is superior to others.
Harmonisation theory explains that if there is any conflict between municipal
and international laws, domestic laws will be applicable in the domestic sphere
and separate the state’s obligations to the international laws. It suggests
that the courts must try to minimise the differences between these two laws through
the harmonisation process, ultimately leading to equivalent positions for both
these laws.
Conclusion
The debate of the
relationship between international and municipal law is complicated. Every
state has to oblige the international treaties and face the brunt of its
breaches. However, they also maintain their municipal laws separate from the
international treaties. Still, we can find the penetration of international
laws into municipal laws, and therefore this debate is intensified. It is seen
in the world that states practice international law when it is in their favour,
and thus, it minimises the differences and intensifies the harmonised judicial
process.
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