relationship between international law and municipal law

Question 1

introduction

Answer 1

Apparently there seems no relationship between international law and municipal law.
But if examined with philosophical eve then it would be seemed that there is a relationship between both the legal orders.
The test as to observe the relationship between the two systems may be conducted in case of a conflict between the two legal orders.
The situation would arise that what law shall be applicable to the case in question.

Question 2

Relationship between Municipal Law and International Law As to relationship between municipal law and international law there are many theories the most prominent one of which may be discussed as under:

Answer 2

1. Dualistic theory
2. monistic theory
3. Transformation Theory
4. Delegation Theory

Question 3

Monistic Theory:

Answer 3

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.

Question 4

monistic theory

Answer 4

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.It maintains that the subject of the two systems of law namely, International Law and Municipal Law are essentially one in as much as the former regulates the conduct of States, while the latter of individuals.
According to this 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.
According to it International Law and Municipal Law are two phases of one and the same thing. The former although directly addressed to the States as corporate bodies is as well applicable to individuals for States are only groups of individuals.

Question 5

Dualistic theory:

Answer 5

Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law.
International law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law.
But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain in force. According to dualists, national judges never apply international law, only international law that has been translated into national law.

Question 6

Dualistic theory:

Answer 6

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.
The sources of Municipal Law are customs grown up within the boundaries of the State concerned and statutes enacted therein while the sources of International Law are customs grown up within the Family of Nations and law making treaties concluded by its members.
In the second place Municipal Laws regulates relations between the individuals under the sway of a State or between the individuals and the State while International Law regulates relations between the member States of the Family of Nations.

Question 7

Dualistic theory:

Answer 7

Lastly there is a difference with regard to the substance of the law in as much as Municipal Law is a law of the sovereign over individuals while International Law is a law between sovereign State which is arrived at an agreement among them. The latter is therefore a weak law

Question 8

Transformation Theory:

Answer 8

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. The transformation is not merely a formal but a substantial requirement.
International Law according to this theory cannot find place in the national or Municipal Law unless the latter allows its machinery to be used for that purpose.

Question 9

Transformation Theory:

Answer 9

This theory is fallacious in several respects. In the first place its premise that International Law and Municipal Law are two distinct systems is incorrect.
In the second place the second premise that International Law binds States only whereas municipal law applies to individuals is also incorrect for International Law is the sum of the rules which have been accepted by civilized states as determining their conduct towards each other and towards each others subjects.
In the third place the theory regards the transformation of treaties into national law for their enforcement. This is not true in all cases for the practice of transforming treaties into national legislation is not uniform in all the countries.
And this is certainly not true in the case of law making treaties.

Question 10

Delegation Theory:

Answer 10

According to this theory there is the delegation of a right to every State to decide for itself when the provisions of a treaty or convention are to come into effect and in what manner they are to be incorporated in the law of the land or municipal law.
There is no need of transformation of a treaty into national law but the act is merely an extension of one single act. The delegation theory is incomplete for it does not satisfactorily meet the main argument of the transformation theory.
It assumes the primacy of international legal order but fails to explain the relations existing between municipal and international laws.

Question 11

Delegation Theory:

Answer 11

It is settled by the leading English and American decisions that International Law forms part of the municipal law of those countries. The United States has unambiguously applied the doctrine that International Law is part of the law of the land.
All international conventions ratified by the USA and such customary International Law as has received the assent of the United States are binding upon American Courts even if they may be contrary to the statutory provisions.
There is a presumption in cases of conflict that the United States Congress did not intend to overrule International Law.