(Assignment relating to public international law)

A CRITICAL ANALYSIS OF THE RELATIONSHIP

BETWEENINTERNATIONALLAWANDMUNICIPAL
LAW

SUBMITTED BY- RUDRABHISHEK PRADHAN

Registration No.– 1941801062

Semester- 10th Semester/ 5th Year
Batch – 2019-2024
Undertheguidanceandsupervisionof
MR. SUBHAM KUMAR SAHU

SOA NATIONAL INSTITUTE OF LAW

SIKSHA ‘O’ ANUSANDHAN UNIVERSITY

 ACKNOWLEDGEMENT
Apart from the efforts of me, the success of any assigned work
depends largely on the encouragement and guidelines of many
others. I take this opportunity to express my gratitude to the people
who have been instrumental in the successful completion of this
assignment work.

My special thanks to the faculty-in-charge; Mr. SUBHAM

KUMAR SAHU for extending support and guidance without which the
completion of this assigned work would have been a more difficult
task. Without his encouragement and guidance this assignment
would not have materialized. He has taken pain to go through the
assignment and make necessary correction as and when needed.

Thanks, and appreciation to the helpful people at SOA

National Institute of Law, for their support. I would also like to thank
my friends without whom this assigned would have been a distant
reality. I also extend my heartfelt thanks to my family and well-
wishers.

I hope that this research assignment will prove to be a

breeding ground for the next generation of students and will guide
them in every possible way. My special thanks go to the Almighty
without whom anything is next impossible.
 CONTENT
TOPIC PAGE NO.
1. INTRODUCTION 01
2. MONISTIC THEORY 02-05
3. DUALIST THEORY 06-07
4. CONSENT THEORY 08
5. INCORPORATION THEORY 09
6. SOME CASES UNDER THE ICJ 10-13
7. CONCLUSION 14
 INTRODUCTION
To understand the relationship between International Law and
Municipal Law, it is important to know the link between the two laws.
International Law is a set of rules and actions related to national
behaviour. In other words, International Law is a set of rules that apply
when States interact. On the other hand, Municipal law is also known
as the National Law of the country. There are various theories to
recognize the difference between these two laws.

• Monistic Theory: Kelsen’s Grund norm

theory and Lauterpacht’s view

Why is Monistic Theory taken as the one power

legal system?
Basically, ‘Monistic’ means the unity of the legal systems. This view
believes that there is no difference between Municipal law and
International Law. The people who follow this theory think that the
science of law and the body of law is a single law that is International
Law itself.

In the Science of Law, there are two branches from a single body: the
National Law and the International Law. This theory defines that
International Law is superior to Municipal Law. Whatever legal work
we deal with, whether National or International, all are meant to be
dealt with by International Law itself.
What is the opinion of Lauterpacht on Monistic
Theory?
According to Lauterpacht, Nation exists on its own. It is the individuals
who are the fundamental components of society. The rights and
obligations of the Municipal legal system can be transferred to the
International legal system. For eg: Human Rights are available in
national as well as in international legal systems.

National and International Law are not equivalent to each other, in the
sense that rights and obligations under both National and
International systems deliver the same purpose which is to promote
the interests of the people.

How did Kelsen get some original documents on

Monistic theory?
The students who were with Kelsen while he was researching this
theory found a hypothesis solution. After detailed analysis, Kelsen got
the documents which were necessary for the theory’s
confirmation. Kelsen explains that monistic theory states that
international law, as well as various state legal systems, constitute a
unified system of law.

The idea he points out is that “one can conceive of international law
together with the state legal systems as a unified system of norms in
exactly the same way as one is accustomed to regarding the state legal
system as a unity.”

Those who do not follow this theory allege that Municipal Law is not
in accordance with International Law and it appears that it will be
more difficult to maintain the new laws due to the actual historical
circumstances.
What is the Overall Opinion on this Monistic
Theory?
Finally, according to Kelsen, he is the source of the final legal force of
all laws based on the basic norms of International Law. His theory
leads to the conclusion that all norms of International Law are superior
to Municipal law. Municipal Laws that are incompatible with
International Law are automatically recognized as invalid and do not
apply.

• Dualist Theory: Quote on Triepel

What opinions were given by H. Triepel?

A dualistic view of the relationship between Municipal and
International Law is presented by H. Triepel in a more rigorous form
in his textbook “ Völkerrecht und Landesrecht”.

What are some basic regulations for Dualist

Theory?
There are no rules for transferring rights and Obligations from one
system to another because the individuals are residents of a country
and are subject to the National Law. In other words, there are various
theories and subjects about National and International Laws. There
are many situations where they come into an argument about which
law is higher.

The person who advocates the dualism theory believes that there is
no contradiction between Municipal and International Laws and that
these provisions do not have the same goal. Internal rules apply only
to national borders and cannot violate International Law.
In this situation, the International Law is valid only at the International
level. In order to implement the International Law in a State, the State
must submit them through a legal notice that facilitates the
application. In both cases, people will face the nationalization of the
convention at the International and National levels.

Dualism teaches that National and International Law are two separate
legal systems with the same International responsibility. These two
systems have different legal sources. National law is used for issues
inside a State and International Law is used for solving problems
between two States.

How has the Dualist Theory been criticized?

Dualism has been widely criticized.

• Firstly, this view states that International Law and Municipal

Law are different from each other as International Law cannot
be part of Municipal Law and it also cannot be regarded as
absolute state law unless it is explicitly enforced or amended
by Municipal Law. This view is not true, because there are
certain basic principles of International Law that link the state
with its own will.
• Secondly, it is not true that International Law regulates only
the relations between countries. It also governs certain
personal actions. If people make certain mistakes, they can be
punished in accordance with International Law eg: War
Crimes.
• Thirdly, “Pacta Sunt Servanda”, which means agreement must
be kept, is undoubtedly an important principle of
International Law, but not the only principle on which it is
based. There are certain rules which are legally binding on a
state.
Article 38(1) of the Statute of the International Court of Justice (ICJ)
provides three International Laws: Treaties, Customs and General
Principles. Since the systems of International Law are horizontal and
decentralized, the creation of International Laws is much more
complicated than the creation of laws in the national systems.

• Consent Theory (Common Theory)

The evolution of this theory was given by John Locke and he derived a
phrase from the theory that is- “Everyone is equal”. Several problems
arose with this including treaties and customs not being the only
sources of International Law. All provisions of the International legal
system in this theory can be accepted by any party in a contractual
agreement.

Article 38(1) of the Tribunal Statutes states that “General Principles of

Law recognized by many Civilized Countries” is the source of
International Law. It helps Judges to further develop International
legal content. This shows us that agreement is not always necessary
for International Law to function.

The theory of consent is not fully applicable in the case of treaties. It

is not important to have the third country’s consent while having an
agreement with any other country. So, in any of the States matter, no
third country can interfere.

For Example: In Article 2 of the Charter of the United Nations, this

theory justifies that the United Nations should have conditions that
the third countries must act in accordance with principles of the UN
Charter. So, Consent theory is mainly for the International Peace and
Security among the sovereign countries, by which two countries can
maintain an acceptable relationship with each other.
 • Incorporation theory
Article 103 of the UN Charter says that if there is any problem
between the UN members under this Charter and their liability are
under other International conventions, then they will be liable under
this charter.

The doctrine of the International Law automatically becomes part of

Municipal Law, according to which Municipal Law is only part of
International Law if recognized by the law or judgement. It is not
entirely clear about the rules of customary International Law with
regard to international treaties.

Sovereignty has the authority to conclude or ratify treaties to bind

Britain under International Law. However, these contracts do not
affect Municipal Law until they are adopted by Parliament. But, Judges
will sometimes consider the provisions of international treaties. (Eg:
human rights issues) in the implementation of community law.
European Community Directives have been said to have legal force in
the Member States.

• SOME CASES UNDER THE ICJ

South West Africa case (Ethiopia Vs. South Africa)

Facts :
In this case, on 4th November 1960, Ethiopia and Liberia, former State
Members of the League of Nations, opened a separate process for the
cases cited in South Africa for the continuation of the League of
Nations mandate for South Africa. The Court was asked to explain that
South Africa remained a mandate territory, it had violated its
obligations under that mandate and therefore was under the legal
authority of the United Nations. On 20th May 1961, the Court found
that Ethiopia and Liberia had the same interests and joined the trial.
South Africa has submitted four initial objections to the jurisdiction of
the Court. At the judgement of 21st December 1962, the Court
rejected them and confirmed their jurisdiction. After the defence was
basically completed within the time limit determined at the request of
the parties, the Court held a public hearing from 15th March to 29th
November 1965 to hear oral arguments and statements and the
second stage of the decision.

Judgement :
The Court decided to reject Ethiopia and Liberia because they could
not establish legitimate rights or interests in relation to their claims.

Barcelona Traction case (Belgium vs. Spain)

Facts :
In this case, the Barcelona Traction Light and Power Company Limited
were incorporated in 1911 in Toronto (Canada), where it had its head
office.

To build and develop power plants and distribution systems in Spain,

the company established a number of subsidiaries, some of which
were located in Canada and some in Spain. In 1936, a subsidiary
supplied most of Spain’s electricity needs.

According to the Belgian government, a few years after the First World
War it became clear that most of Barcelona Traction’s share capital
was held by Belgian citizens, but the Spanish government rejected this
claim. Barcelona Traction had issued several series of bonds, mainly in
the form of sterling. Sterling bonds were served by Barcelona Traction,
which was influenced by a subsidiary operating in Spain. In 1936,
maintenance of crane bonds in Barcelona was terminated due to the
Spanish Civil War.

After this War, Spanish exchange control authority refused to allow

the transfer of foreign currency needed to restart services on sterling
bonds. When the Belgian government said that the transfer displays
that the foreign currencies must be used to pay off debts from actual
foreign capital from Spain, they did not confirm the currency
exchange.

Issues :
1. Does Belgium have the Jus Standi (right to bring an action) to
have diplomatic protection for shareholders of Canadian
companies?
2. Does Belgium have the rights and jurisdiction to bring Spain to
justice for the actions of Canadian companies?

The judgement of the case:

The Court decided to reject this case which shows the difference
between individuals who are inherently sovereign at the national and
international level. The Court ruled in favour of Spain, as Belgium was
not responsible for the war occurred in Spain, and diplomatic
immunity was not granted to shareholders requiring compensation.

However, a lawsuit may arise if the shareholder is located in Canada

and has the correct identity. Therefore, since the country has not been
given power, a person cannot take action against one Country. This
case is considered as a good benchmark for Governmental
requirements.
 • Application of Rule of Law in International
Law (India)
The British said that they were the originators of this concept when Sir
Edward Cox stated that the King obeyed God and the Law, which
would eventually abolish the Rule of Law in the business of the Chief
Executive. Professor Albert Venn Dicey later developed this concept.
He was an individualist. He wrote about the concept of the Rule of Law
at the end of the golden age of Victoria Laissez-Faire in England. For
this reason, the concept of Dicey’s law is useless.

The doctrine of the rule of law has been classified into three meanings
in Dicey’s book. The three meanings include:

1. The supremacy of law;

2. Equality before the law;
3. The predominance of legal spirit.

• General principles of International Law

International law is a complex and evolving norm governing interstate
relations. International law contains guidelines for the sovereign
states, international organizations and some individuals. The range of
issues directly addressed by International law covers the areas of
human rights, trade, space law and international organizations
outside of war, peace and diplomacy.

Rules/Principles
1. Direct and Indirect Discrimination;
2. Vulnerable Groups and Non-Discrimination;
 3. Affirmative Action or Protective Measures for the Most
Vulnerable Groups;
4. Education To Combat Discrimination.
Article 38(1) of ICJ’s statutes identify three sources of International
law:

1. Treaties
2. Customary International Law
3. The General Principles of International Law i.e. jus cogens
(Compelling Law)

General legal principles are recognized by civilised people and are

defined by many countries and are also defined by the statute of the
International Court of Justice as one of the most important sources of
International Law. These principles basically deal with International
issues that are arisen in any other Country. Any problem arising from
International or Municipal Law with regards to these principles can
only be solved at the International level.
 CONCLUSION
National and International legal systems run in their own territory
without any hypothesis of retaliation with each other. Both systems
are essential and commonly supportive and also socialize with each
other in an up-to-date context in relation to many issues. It is believed
that International Law is higher than Municipal law because Monist
theorists believe that International Law can solve any problems which
have arisen within any State.

Kelsen also believes that International Law covers all aspects of human
life. Monistic theorists view that International Law does not come
under any Law, rather Municipal Laws are a part of International Law.