International law and Municipal law
1. Introduction:
International law regulates relations among states municipal law governs the domestic aspects of the government and deals with the issues between individuals and between individuals and administrative apparatus. municipal law is also known as national law or state law. international law and municipal law are different from each other.
2. Theories of the relationship between International law and Municipal law:
Following are theories about the relationship between international law and municipal law.
- Monistic theory.
- Dualistic theory.
- Specific adoption theory.
- Transformation theory.
- Delegation theory.
Monistic theory:
According to this theory all laws as a single unit composed of binding legal rules. Keslson, wright, and Duguit are chief exponents of this theory. According to them, international law and municipal law are essentially one.
Kelson's views:
"Science of law is a unified field of knowledge and the decisive point is therefore whether or not international law is true law. once it is accepted as a hypothesis that international law is a system of rules of a truly legal character, it was impossible to deny that the two systems constitute part of that unity corresponding to the unity of legal system."
Criticism:
The monistic theory has been severely criticized. this theory has failed to explain the status of slave pirates and other individuals who are regarded as the subject of international law by the jurists of international law by the jurists of another school of thought.
Dualistic theory:
This theory is also known as the Plurastic theory. According to this theory international law and municipal law are two different laws. Tripel and Anzilotti are the chief exponents of this theory. The subjects of international law are states only while the subjects of municipal law are individuals. The source of municipal law is the will of the state itself whereas the source of international law is the will of states.
Anzolotti's views:
According to Anzolotti, there is a difference between the fundamental principles of international law and municipal law. the basic principle of state law is that the state legislation must be obeyed whereas the basic principle of international law is Pacta Sunt Servanda agreements between states are to be respected.
Criticism:
In practice, we find that the primary concern of international law is the rights and duties of the states. one cannot say that pirates, slaves, and highjackers are the only subjects of international law.
Case: 1965 convention of the settlement investment.
Specific adoption theory:
The chief exponents of this theory are Holland, Gray, and Lawrence. according to them, international law cannot be directly enforced in the field of municipal law. international law is applicable in a state only when municipal law permits its specific adoption.
Transformation theory:
According to this theory, it is the transformation of the treaty into national legislation which alone validates the extension to individuals of the rules. set out in international agreements international law cannot find a place in national or municipal law.
Case law
Cheung v. Regina 1939
"Treaty can bind the subjects of a state only where it has transformed into the law of the state."
Delegation theory:
According to delegation theory, there is delegation of a right to every state to decide for itself where provisions of international law or convention come into force. this theory has been presented by the critics of transformation theory.
3. Practice of states regarding the application of international law in the municipal sphere:
I. Position in Britain:
There is a distinction between the customary rules of international law and the law laid down by the treaties about their operation in Great Britain the customary rules of international law are treated as part of British laws.
(A) Regarding customary rules of international law:
The British courts treat customary rules of international law as a part of their law.
(B) Regarding treaties:
Regarding treaties, British practice is based on conventional principles governing the relationship between the executive crown, and parliament.
II. Position in U. S:
(A) Regarding customary rules:
The customary rules are treated as part of U. S laws.
(B) Regarding treaties:
It is different from British practice. treaties and state law are equal in force. in case of conflict later in the date prevails.
III. Position in France:
Rules of international law are considered part of state law and treaties are administered and applied by French courts.
IV. Position in Russia:
According to the principles of the civil legislation and civil procedure of the Soviet, Union, in case of conflict between international law and the Soviet Federal statute the former shall prevail but if there is a conflict between an international treaty and the provisions of the Soviet Constitution the latter shall prevail over the former.
V. Position in Pakistan:
In Pakistan, courts are empowered to interpret the rules of international law in the municipal sphere.
Case law
Messers Najib Zarb L T D v/s Govt. of Pakistan 9PLD 1993 Karachi 93)
Held:
Municipal law must respect the rules of international law. if there is no conflict the international law shall prevail if there is conflict the municipal law shall prevail.
4. Distinction between international law and municipal law:
I. As to relation:
International law deals with the relations of sovereign states with each other.
Municipal law deals with the rights and duties of individual subjects.
II. As to application:
International law applies to all states.
Municipal law applies to one state.
III. As to enforcement:
International law has no power and machinery for enforcement.
Municipal law has power and machinery for enforcement.
IV. As to jurisdiction:
International law involves foreign elements as to jurisdiction.
Municipal law does not involve foreign elements as to jurisdiction.
V. As to conflict of laws:
International law does not involve a conflict of the system of laws.
Municipal law may involve a conflict of laws.
VI. As to source:
International law is not out come of legislation of sovereign authority.
Municipal law is out come of legislation by the national parliament.
5. Conclusion:
To conclude it can be said that international law and municipal law are important laws. both international law and municipal law have almost no law. however international law is distinguishable in many respects from municipal law.