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Relationship between International Law and Municipal Law
While International Law is applied in the relations of the States and to other subjects of International Law, national or State Law which is called municipal law is applied within a state to the individuals and corporate entities which are bearers of rights and duties thereunder. The problem of relationship between the rules of International Law and Municipal Law is one of the most controversial questions of legal theory and at present determination of their relationaship has acquired practical significance as well. Originally the connection between the 2 laws was a matter of theoretical importance i.e., whether Law of Nations and Municipal law are parts of a universal legal order or they form two distinct systems of law. The foremost question which appears before International tribunal is whether International Law takes primacy over municipal law, or vice versa. The question of relationship of the two systems has acquired importance in modern International law also because a very large part of it is directly concerned with the activities of individuals who come under the jurisdiction of municipal courts. Thus, it is in the municipal courts an increasing part of International Law is enforced.
The views of the jurists on the question of relationship of International Law and Municipal law are varying and divergent because of which many theories have emerged. Prominent among them are as follows:
DUALISTIC THEORY - According to Dualistic theory, Law of nations and municipal laws of the several states are two separate, distinct and self-contained legal systems. Being distinct systems, International Law would not as such form part of the internal law of a state. Such a view avoids any question of the supremacy of the one system of law over the other since they share no common grounds and subjects of application, each is supreme in its own sphere. The dualists maintain that as international law cannot address itself to individuals, but only to States, States are free to regulate their internal affairs as they see fit, and that international law exercises little or no control over municipal law.
This theory was developed by a prominent German scholar Triepel in 1899. The theory was later on followed by Italian jurist Anzilotti and Starke. The above authors are of the view that the 2 systems of law differ from each other regarding with Sources, Subjects, Substance of Law, Principles and Dynamism of the Subject-Matter.
MONISTIC THEORY- According to this theory, there exists only one set of legal system, i.e., the domestic legal order. It has been denied by the exponents of this theory that the International Law is distinct and autonomous body of law. The monistic doctrine was developed by Austrian jurist Kelson. Monists maintains that municipal law as well as International law are parts of one universal legal system serving the needs of the human community in one way or the other. Law of nations is therefore indistinguishable from the internal or municipal law of States and is significant only as part of the universal legal order. They both are therefore species of the genus-law. Exponents of monistic theory rejected the differences between the two systems regarding sources, substance, principles and subject matter as alleged by Dualists.
Germinating from these two prominent views, two other theories also came into existence.
Transformation or Specific Adoption Theory: It is based on the dualist concept. This theory says that, no rules of international law, by its own force, can claim to be applied by municipal courts, unless they undergo the process of transformation and be specifically adopted by the municipal courts and systems. The rules of international law are part of national law only if specifically-adopted.
Delegation Theory: This theory laid down that there is the delegation of a right to each state constitution by the rules of international law called “Constitutional rules of international/treaties”, which permit each state to decide or determine for itself as to how and when the provisions of international treaty or convention are to come into force and in what manner they are to be implemented or embodied into State law.
