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CHAPTER 2
THE RELATION BETWEEN INTERNATIONAL LAW AND
MUNICIPAL LAW

Contents
2. 1

Theoretical approach

Pages
2

2.1.1 Dualistic Theory

2.1.2 Monistic Theory

2.2

International law in the Municipal Legal System

2.3

The Practice of States

2.3.1 British Practice

2.3.2 American Practice

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2.4

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Judicial application of international law in the

Union of Myanmar

2.4.1 Judicial Attitude before Independence

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24.2 Judicial Attitude after Independence

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The Relation between International Law and Municipal Law

2. 1 Theoretical approach

There are two main theories regarding the relation between

international law and municipal law namely(1) dualistic theory: and
(2) monistic theory

()
()

2. 1.1

Dualistic Theory

According to what may be called the dualistic theory, international

law and municipal law are essentially different form each other. Firstly
they differ as regards their sources. The sources of municipal law are
statues enacted by the law-giving authority and custom grow up within the
boundaries of the state. The sources of international law are law-making
treaties concluded by states and custom grown up among states.

( )

Secondly, they differ regarding the relations they regulate. Municipal

law regulates relations between the individuals under the sway of a state
and the relations between the state and the individual. On the other hand,
international law regulates relations between states.

Thirdly, they differ with respect to the substance of the law.
Municipal law is a law of sovereign over individuals subjected to his
away. On the other hand, international law is a law not above, but between
sovereign states, and is therefore a weaker law.

If international law and municipal law differs as mentioned above,
international law can neither as a body nor in parts by itself a part of
municipal law. Municipal law has no power of altering or creating rules of
international law. Likewise international law lacks the power of altering or
creating rules of municipal law. In case of a conflict between international
law and municipal law the dualist would assume that a municipal court
would apply municipal law.

The chief exponents of dualism have been Triepel and Anzilotti. It

was also shared emphatically by Professor Oppenheim.

Triepel

ProfessorOppenheim

Anzilotti

2.1.2 Monistic Theory

The dualistic theory is opposed by what may be called the monistic
theory. The latter rejects all three premises of the dualists. Firstly, the
monists maintain that international law and municipal law are not different
in regard to the relations they regulate. In both it is ultimately the conduct
of the individuals which is regulated by law. The only difference is that in
the international sphere the consequences of such conduct are attributed to
the state.

Secondly, they assert that in both systems law is essentially a
command binding upon the subjects of the law independently of their will.

Lastly, their contention is that international law and municipal law,
far from being essentially different, must be regarded as manifestations of
a single conception of law.

Monism is represented by a number of jurists whose theories
diverge in significant

respects. In the United Kingdom, Hersch

Lauterpacht has been a forceful exponent of the doctrine. Monism can also
be found in the writings of Kelsen, Kunz, Scelle, Verdross and Wright.

Hersch

Lauterpacht

United Kingdom ,

Kelsen,

Verdross and Wright

Kunze,

2.2. International law in the municipal legal system:

Incorporation and transformation

Scelle,

The use of international law in municipal courts is often explained in

terms of the doctrines of incorporation and transformation.

Under the "doctrine of incorporation", a rule of international law
automatically becomes part of municipal law without the need for express
adoption. The rule of international law is incorporated in municipal law
simply because it is a rule of international law. This is the position in the
United Kingdom in respect of international customary law.

Kingdom

United

On the other hand, the "doctrine of transformation" states that rules

of international law do not become part of municipal law until they have
been specifically adopted by the State. This is also known as "specific
adoption theory."

According to the doctrine of transformation, international law is not

ipso facto part of municipal law. A municipal court cannot apply a
particular rule of international law until that particular rule has been
deliberately 'transformed' into municipal law in the appropriate manner, as
by legislation.

2.3. The Practice of States

In view of the wide divergence of theories, it is necessary to inquire

into the actual legal position in the principal countries regarding the
relation between international law and municipal law.

2.3.1

British Practice


British practice draws a distinction between(a) customary international law
(b) treaties


()
()

(a)

Customary International law

With regard to international custom, "the Doctrine of Incorporation"

is the dominant principle in Britain. This doctrine, first formulated in the

th

8 century, was that customary international law was deemed

automatically to be part of the law of the land.

In 1765, Blackstone's statement of the doctrine was in these
terms:
"The Law of Nations is here adopted in its full extent by the
common law, and it is held to be a part of the law of the land"

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This doctrine was favoured not only by Blackstone but also by
Lord Mansfield and other judges in the 18

th

century. During the 19

th

century, it was reaffirmed in a succession of decisions.

Blackstone Lord Mansfield


A departure was made from this traditional view in the
Franconia Case where it was held that English Courts had no jurisdiction
over crimes committed by foreigners within the maritime belt extending to
three miles from the English coast.

But the traditional doctrine of incorporation has been reaffirmed in

the case of West Rand Central Gold Mining Co. V. The King decided in
1906.

It is to be noted that in Britain, an Act of Parliament is supreme.
International law although a part of common law must yield before and
Act of Parliament.

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In a number of decisions, the traditional doctrine of incorporation

has received recognition. But it has been recognized with certain
qualification. Thus Lord Atkin declared in.

Chung Chi Cheung V.The King:"The Courts acknowledge the existence of a body of rules
which nations accept among themselves. On any judicial issue they seek to
ascertain what the relevant rule is, end, having found it, they will treat it as
incorporated into the domestic law, so far as it is not inconsistent with
rules enacted by Statutes or finally declared by their tribunals."
Chung Chi Cheung V.The King: Lord Atkin

( )

(b)

Treaties

Treaties which affect the private rights of British subjects or involve

any modification of the common law or a statute must receive

parliamentary assent through an enabling at of Parliament. To that extent
binding treaties which are part of international law do not form part of the
law of the land unless expressly made so by the legislature.

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( ) ( )



2.3.2

American Practice

With regard to customary international law, the American practice is

very similar to the British practice. International custom is deemed as part

to the law of the land and Acts of the Congress are construed so as not to
conflict therewith. However, a later clear Statute will prevail over earlier
customary international law.

So far as treaties are concerned, there is a radical difference from the

British practice. The Constitution of the United States gives supreme
importance to treaties. Article VI of the Constitution specifically provides
that:
"All treaties made . under the authority of the United States,
shall be the supreme law of the land ."The result is that as soon as the
President ratifies a treaty, it is transformed into American law. There is
only a qualification. In practice, American courts draw a distinction
between 'self-executing' and 'non-self-executing' treaties.

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A self-executing treaty is one which does not require legislation to

make it operative within the municipal field. On the other hand, treaties
which are not self-executing are not binding upon American courts until
the necessary legislation is enacted.

To sum up, customary international law and self-executing

treaties ratified by the United States, are binding on American Courts,
even if in conflict with previous. American Statues, provided there is no
conflict with the United States Constitution. But a Statue passed by

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Congress overrules previous treaties, although there is a presumption that

Congress did not intend to overrule such treaties.

2.4 Judicial application of international law in the Union of Myanmar

So far as Myanmar courts are concerned cases involving questions of

international law are quite few. Before the second world war there had
been actually no international law case decided by a Myanmar court
Justification for this lies in the fact that Myanmar had been a British
colony and Myanmar's relation with foreign countries were conducted by
British authorities.

However, Japanese occupation of Myanmar during the Second world

war gave wise to a number of legal problems. Consequently courts had the

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opportunity to decide cases involving important questions of international

law. It is necessary to divide these cases into two categories, namely, those
decided before Myanmar regained her independence and those decided
after independence.

2.4.1. Judicial Attitude before Independence

Among the cases decided before independence the most
important and most illustrative of the judicial attitude is The King
V.Maung Hmin. The legal question involved in that case is the validity of
conviction and sentence passed during the Japanese occupation. But in
order to give a proper answer to this question the court went into the larger
problem of the relationship between international law and municipal law
and how far the former is part of the latter.

()

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The following are the facts of the case:

Six persons were tried by the Sessions Court of Tharawaddy of the
offence of dacoity with murder under section 396 of the Penal Code. Some
of them were convicted and others were acquitted. The convicted persons
were confined in the jail at Tharawaddy. But in May 1945, when the
Japanese were retreating from Myanmar these persons regained their
liberty. After the reoccupation of the country by the British they were
arrested and sent up for trial before the Special Judge of Tharawaddy for
the same offence as that for which they had been convicted or acquitted.

()

()

All the accuseds pleaded that since they had already been tried and
convicted or acquitted by Courts of competent jurisdiction, they should not
be tried again for the same offence. The trial judge accepted these pleas

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and accordingly discharged the accused. However, the public prosecutor

brought a revision application before the High Court.

The Attorney General, appearing for the Government, contended that

the courts established by the Japanese in Myanmar during the war were
not courts of competent jurisdiction. In dealing with this issue the High
Court referred to Article 43 of the Hague Regulation. It embodied the
Convention on the Laws and Customs of War on Land and was ratified by
both Britain and Japan. The Article is in these terms:
"The authority of the power of the state having passed de facto
into the hands of the occupant, the latter shall do all in his power to restore
and ensure, as far as possible, public order and safety, respecting at the
same time, unless absolutely prevented, the laws in force in the country."

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According to this Article, the occupant must obviously establish and
maintain Courts of Justice. So long as these Courts are constituted in
accordance with the municipal law of the occupied country they are
validly constituted courts. If the law administered by these courts is the
municipal law of the occupied country, their decisions are valid and
binding.

In this connection here are the words of the learned Chief Justice
"The presiding judges and magistrates were for the most part the same
judicial officers under the British administration. The penal law were the
same the British Penal Code continued to define and punish offences and
the British Code of Criminal procedure continued to govern the procedure
of the criminal courts. No changes of any importance were made."

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Another contention made by the Advocate-General was that the issue

involved in the present case had nothing to do with international law.
Dunkley, the Acting Chief Justice rejected this contention of the ground
that "there is no sharp dividing line between international law and
municipal law, and of necessity some of the principles of international law
have to be and are incorporated in and form part of the municipal law. "As
to the extent of such incorporated, the learned Judge cited the well-known
case of Chung Chi Cheung V. The King.

Dunkley,

Chung Chi Cheung V. The King

Under the authority of that case, it was held by the High Court that
the Hague Regulations must be treated by the courts of Myanmar as
incorporated into the municipal law of Myanmar, to such extent as they are
not inconsistent with the ordinary law of the country."

Thus, The King V. Maung Hmin adopted what is known as the

doctrine of incorporation. This decision was followed by later High Court
cases involving question of international law. Therefore, the judicial
attitude of the British courts in Myanmar is that international law forms

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part of Myanmar municipal law in so far as the former is not in conflict

with the latter.

2.4.2.

Judicial Attitude after Independence

There were only a few cases involving question of international law

decided by the High Court and the Supreme Court, constituted under the
Constitution of 1947. In Dr. Chan Taik V.Ariff Moosajee Dooply the High
Court of the Union of Myanmar followed the dictum of the preindependence cases by deciding that the Hague Regulations must be
treated by the courts in Myanmar as part of the municipal law.

()

But the well-known case of Evgoni T.Kovtunenko V.U Law Yone
decided by the Supreme Court in 1960, is the most illustrative of the postindependence judicial attitude. It is so far the only case in which the

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highest court of the land had extensively discussed an important question

of international law.

Facts of the case are as follows:

U Law Yone filed a complaint in the court of the District Magistrate,
Yangon, against Kovtunenko for criminal defamation under section 500 if
the Penal Code. U Law Yone was the chief editor of the Nation, an
English newspaper published in Yangon. Kovtunenko was the local
representative of Tass, the Soviet News Agency. The complaint was based
on a news item appearing in a Tass Bullention to the effect that U Law
Yone had received a large sum of dollars from the American Embassy in
Yangon. The suggestion was that he had been paid that sum to agitate for a
change in Myanmar policy of neutrality.

-

Tass Bullention

Tass

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Kovtunenko claimed immunity from process on the ground that the
Tass Agency, of which he was an official was a Department of the
U.S.S.R. He also filed a certificate to that effect issued by the Charge(d')
affaires of the Soviet Embassy in Yangon. The District Magistrate rejected
the claim of immunity and decided to proceed with the hearing on the
merits.

Tass

U.S.S.R

Kovtunenko then moved the Supreme Court under section 25 of
Constitution to exercise its supervisory powers under section 4 of the
Union Judiciary Act and to quash the proceedings before the district
Magistrate.

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Counsel for the applicant argued that although the complaint was
against Kovtuneko, it was in effect against the Tass, which was a
department of a foreign sovereign state Furthermore, the counsel
contended that as a department of a foreign sovereign state the Tass was
immune from the process of the court, unless the Soviet Union Voluntarily
submitted to the jurisdiction or waived the immunity.
(

Tass Tass

( )

On the other hand, counsel for the respondent contended that the
applicant was merely an official of a department of a sovereign state and
that therefore he was not protected by the same kind of immunity which an
Ambassador of his retinue enjoy.

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After thoroughly discussing the authorities cited by the parties the

court decided in favour of the respondent rejecting the applicant's claim of
diplomatic immunity. Here are some important statements of law, appear
in the judgment of the court:

(1)

Though in Britain and in the United States international law is

deemed to be part of the law of the Land, the position is different in
Myanmar. Even an international agreement, as such is not part of
Myanmar municipal law save as may be determined by Parliament.

(2)

In the absence of a specific enactment, it would be within the

competence of the courts to follow the principles of international
law, not as such, but as being in accordance with justice, equity and
good conscience. But in considering whether a particular principle
can be adopted the provisions of sections 211 and 213 of the
Constitution should not be lost sight of.

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(3)

For a particular principle of international law to be acceptable in

Myanmar Courts, firstly it must be generally recognized customary
law of the nations and secondly it must not conflict with Myanmar
municipal law.

(4)

Section 211 the Constitution is a declaration of policy which

provides guidance to government in its international relations and
make it incumbent upon it to take such legislative measures as may
be necessary to bring it in line with other states.
-

(5)

No person not even the President of the Union, merely by virtue of

his status, can claim immunity from the penal laws of this country
and, in so far as the courts are concerned a complaint of the nature
involved in the present case, will have to be dealt with according to

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law. There is no provision in the Penal Code similar to section 361

(1) of the Indian Constitution in view of which the president is not
answerable to any court for the exercise and performance of the
powers and duties of his office or for any act done or purported to be
done in pursuance there of.

It is, therefore, clear that the Supreme Court, considerably

modified the doctrine of incorporation 'adopted by the British Courts and
followed by the Myanmar High Court in the King V.Maung Hmin and in
subsequent cases. But it is quite incomprehensible why the Supreme Court
did not have considered or even mentioned in their judgment this
important ruling by a Full Bench of the High Court.

( )

There has so far been no international law case of comparable

importance since Kovtunenko. It is, therefore, difficult to assess the

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present position of the law in Myanmar. No doubt certain aspects of

Myanmar foreign policy must not be lost sight of.
Kovtunenko

But that as it may, it is a fact that as a member of the United Nations,
Myanmar has pledged to abide by the principles and purposes of the
Charter of the United Nations which form the very basis of international
legal order.

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KEY TERMS
Dualistic theory

Monistic theory

Doctrine of Incorporation

Doctrine of Transformation

Specific adoption theory

Common law

Self-executing treaties

Non-Self executing treaties

Hague Regulations

De facto

Diplomatic immunity

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EXERCISE QUESTIONS
Assignment Questions

1. What are the main theories regarding the relation between

international law and municipal law? Explain each theory.
2. What do you understand by the "Doctrine of Incorporation"?
Eiaborate the doctrine in the light of practices of States.
3. Write a brief comment on the judicial application of international
law in Myanmar.
4. Trace

the

pre-independence

judicial

attitude

to-wards

international law in Myanmar.

5. "In Kovtunenko's case the Supreme Court of diplomatic
immunity" Comment.
Short Questions
1.Write short note about the Dualistic Theory.
2. Explain briefly about the Monistic Theory.
3. Write about the practice of American.

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