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CHAPTER 4 – RELATION BETWEEN INTERNATIONAL LAW (IL) AND MUNICIPAL LAW (ML)

2 Principal Theories on the Relationship of IL and ML are (i) Monism and (ii) Dualism

I. MONISM

Lead by Kelsen – View held is that IL and ML are concomitant (naturally accompanying and
associates) aspects of One Legal System – They resemble each other and spring from a single
grund norm (standard) which is the fountainhead of all laws – IL and ML mediately or
immediately regulate the conduct of individuals

I.1 DELEGATION THEORY

There is delegated to each State constitution by the rules of International Law, the right to
determine when the provisions of a treaty or convention are to come into force and the manner
in which these are to be embodied in State law – There is no transformation of the IL into ML
– There is not even a fresh creation of the Rules of ML – The process of creation of the ML is
an extension of the creation of International Norms – Theory of Monism attaches primacy to
IL and treats it as superior to the ML

Hungary v. Slovak Republic (European Union Grand Chamber) – [Read from the Gurdeep
Singh – Page 58]: EU law has to be read in consonance with the IL and IL is a part of EU Law
– Court held that the head of the State enjoys immunity on the basis of Customary Rules of
General International Law

II. DUALISM (POSITIVIST THEORY)

IL and ML are entirely distinct – IL and ML has no relation whatsoever – 3 reasons in support:

(i) Origins of IL and ML are different – Source of ML is the will of the State itself
whereas, the Source of IL is the Common Will of the States
(ii) Subjects of ML are individuals whereas the subjects of IL are States
(iii) IL and ML differ in their substance – ML is a law of the sovereign whereas IL is a
law between Sovereign States and therefore, weaker law

II.1 TRANSFORMATION OR SPECIFIC ADOPTION THEORY

Rules of IL can be enforced in the Municipal Court, only if such laws are transformed into
Municipal Legislation – ML strengthens IL and makes it operative by incorporating it into
national legislation and thereby making IL binding on Municipal Courts – International
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Treaties are of the nature of promises, and municipal statutes which are of the nature of
commands – Therefore, the transformation of IL into ML is formally and substantively
indispensable

III. PRACTICE OF STATES

Practice in each State is bifurcated in two parts – (i) Treaty Practice and (ii) Practice with
regards to International Custom

III.1 ENGLISH PRACTICE

III.1.1 INTERNATIONAL CUSTOM

Blackstonian Doctrine (or Incorporation Doctrine, propounded by Sir William Blackstone) –

It emphasises that the CIL is deemed automatically to be part of the Common Law – It treats
CIL as part of ML, without any limitation whatsoever – The Doctrine was accepted by the
Court till mid19th Century – IN 1876, English Court in R. v. Keyn, where it was held that the
English Court has no jurisdiction over the Crimes committed by foreigners within the maritime
belt extending to 3 miles from the English Coast, although such Jurisdiction belong to them
under IL – Therefore, the CIL could never be applied by British Municipal Courts unless they
had been embodied in a British Statute

20th Century – Reversion to Blackstonian Doctrine – However, the scope of doctinre was
narrowed by making certain exceptions to the Doctrine – Reaffirmed in West Rand Central
Gold Mining Co. v. R. – In Chung Chi Cheung v. R., Lord Atkin, held that on account of
inconsistency between IL and ML, ML shall prevail over IL – This constituted as an Exception
to the Blackstonian Doctrine – Influence of the Doctrine in England:

(i) Rule of Construction – English Court adopted Harmonious Construction avoiding

conflict between Statute law and IL – Thus, English Court interpreted ML in the
context of IL – But, this rule would not be applicable if the ML is clear and
unambiguous despite being in conflict with IL

Supreme Court of UK: In the case of In Re McCaughey, The State might be obliged
under the Convention even if not ratified– [Read from the Gurdeep Singh – Page
61] – The State should comply with Article 2 of the European Convention on
Human Rights, 1950 – The Court held that the Parliament was presumed to intend
to require compliance with International Obligation and any clear ruling of
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International Court has to be followed unless there are strong reasons for not doing
so

(ii) Rule of Evidence – British Court do not call for evidence to prove rules of IL, as
they do in cases requiring proof of foreign law in the sphere of conflict of laws –
British Courts follow CIL unless it conflicts with the Statute Law
Exception – Price Court are established in War-time – They were held to be not
bound to give effect to the Statute Law, if it conflicted with the IL

III.1.2 INTERNATIONAL TREATIES

Relation between the Executive and the Parliament governs the English Practice – The
Negotiation, Signature and Ratification of the treaties belong to the domain of the Executive
(Crown) – Treaties which affects the Private Rights which require modification in the Common
Law must receive Parliamentary assent through an enabling Act of the Parliament – Binding
treaties which are part of the IL do not ipso facto become part of the law of the land unless
expressly adopted or incorporated by the Parliament – Whereas, the Treaties which do not
which are not of Prime importance do not require legislative action for their implementation

III.2 AMERICAN PRACTICE

III.2.1 INTERNATIONAL CUSTOM

American Practice is similar to British Practice – Paquete Habana Case, US Supreme Court
held that the IL is part of the Law and must be ascertained and administered by the Courts of
Justice of appropriate jurisdiction – The Court found that the seizure of fishing boats as prize
in violation of IL had not been authorised by the President of USA and had clearly manifested
a policy that the war should be conducted in accordance with IL

United States v. Malekh, US Supreme Court – International Customary norms are administered
as part of the law of the land – US gives, the Congress, power “to define and punish offences
against the law of the nations” – To avoid any conflict between IL and ML, the Doctrine of
Harmonious Construction is used, however, no effect is given to a rule of IL which is in conflict
with a Statute Law, which is clear and unambiguous

III.2.2 INTERNATIONAL TREATIES

US Constitution says that all the Treaties made by US or under the authority of the US shall be
considered as the law of the land – Distinction has been made by the US Courts on the basis of
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the self-executing and non-self-executing nature – The Treaties of the Non-Self-Executing

Nature needs to be incorporated into the Municipal Legislation – The necessary consideration
would be the intention of the signatory parties and the surrounding circumstances

Sei Fuji v. State of California: The Human Rights provisions of the UN Charter (Articles 55-
56) were not self-executing but the provisions relating to the privileges and immunities of the
UN Charter (Articles 104-05) were self-executing

The self-executing treaties ratified by the USA overrule previous ML, provided such treaties
are not inconsistent with the Constitution of the US – However, the ML overrules the previous
self-executing treaties which have become law of the land

III.3 INDIAN PRACTICE

III.3.1 INTERNATIONAL CUSTOM

Blackstonian Doctrine is not followed in India – Article 51(c) of the Indian Constitution states
that the State shall endeavour to foster respect for International law and Treaty onligations in
the dealing of organised people of one another (IL here means CIL)

Chank (This is Shankh, jise Aarti ke time bajate hain) Fisheries Cases – Annakumaru Pillai v.
Muthupayal – [Read from the Gurdeep Singh – Page 65]: Court held that the Rajah acquired
historic title over sedentary fishery on the basis of Customs – By recognising the title, Court
enforced the CIL (by virtue of Prescription)

AMSSVM v. State of Madras – [Read from the Gurdeep Singh – Page 65]: Madras High Court
enforced CIL and recognised the private right for the exploitation of the Chank Fish, relying
upon the principles of Common Law and Corresponding law of the nations relating to marine

ADM Jabalpur v. Shivkant Shukla – [Read from the Gurdeep Singh – Page 66-67]: SC rejected
the UDHR to be a part of the ML (Nothing which conflicts with the provisions of the
Constitution can be enforce in the nation)- UDHR contains mere ethical rules

It seems fallacious as most of the provisions of the UDHR has become part of the CIL – UDHR
should’ve been inapplicable only in the case of the direct conflict with the ML – Article 372 of
the Constitution states that all the Laws in force at the time of commencement of the
Constitution shall remain in force unless altered or repealed or amended – Here, “Law in Force”
includes the Common Law of the Land, which was administered by the Courts in India –
Common Law Doctrine is applicable in India, therefore, Ruled of IL are not mere ethical rules
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and needs to be applied by the Indian Courts as far as possible – Dissenting opinion of Justice
Khanna appears to be more rational – He opined that if there is a conflict between the IL and
ML then, ML shall prevail, but as far as possible, they should be harmoniously construed

Vellore Citizens Welfare Forum v. Union of India (UOI): Precautionary Principle and the
Polluter pays Principles have acquired the character of International Custom and constitutes a
part of law of the land – There is no conflict with ML – SC treated CIL as part of the Indian
Law as there is no conflict between IL and ML

III.3.2 INTERNATIONAL TREATIES

Article 73 of the Constitution states that the executive power of the Union shall extend to the
matters in respect of which Parliament has power to make laws – Entry 14, List 1 of the VII
Schedule deals with entering into the treaties or agreements and conventions with foreign
countries – Unless Parliament makes any law, the President’s power to enter into treaties
remains unfettered by any internal constitutional restriction - The executive power of the
Union being co-extensive with the legislative powers of the Parliament, the treaty making
function is exercised and regulated by the executive in the absence of legislation on the subject
– In practice the President does not negotiate and conclude a treaty or agreement himself –
Treaty is however, ratified by the President – The question whether a particular treaty or
agreement calls for an implementing legislation would depend very much upon its subject-
matter

III.3.3 TREATY MAKING – AN EXECUTIVE ACT

Union of India v. Manmull Jain (Transfer of Possession of Chandernagore transferred to India)

– Whether the Union Executive can exercise its treaty-making power without an authorising
legislation of Parliament? No Parliamentary legislation was made to the effect – The Court
held that ‘Making a treaty is an executive act and not a legislative act’ – The President makes
a treaty in exercise of its executive power and no court in India can question its validity

Nirmal Bose v. Union of India: Relying upon Ram Jawaya Kapur v. State of Punjab and
Jayantilal Amrutlal Shodhan v. F. N. Rana, the Supreme Court held that the treaty-making is
an item of Union Legislatoin, nevertheless Union Government can enter into treaties with
foreign power although no legislation has been passed in pursuance of Entry 14, List 1

III.3.4 IMPLEMENTATION OF TREATIES

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(i) Treaties involving cession of national territory:

In Re Beruberi Union – [Read from the Gurdeep Singh – Page 69-70]: Whether the
implementation of the agreement is a legislative action? SC held that it was not a
mere determination or ascertainment of the boundary, it had a judicial effect of
ceding a part of India – SC held that it required incorporation of the agreement in
the Municipal Law
Ramkishore Sen v. Union of India (In Re Beruberi II) – Concerned territory was
with the administration of India but de jure that of Pakistan – SC held that proposed
transfer could take effect by executive action and no legislation was necessary
Maganbhai Ishwarbhai Patel v. Union of India (Kutch Case) – Petitioner wanted to
restrain CG from transferring areas in Rann of Kutch to Pakistan without the
approval of the Parliament – Held (Majority lead by Justice Hidayatullah) that the
decision to implement the award by exchange of letters treating the award as an
operative treaty after the boundary had been marked in the area, was within the
constitutional competence of the Union Executives
Minority, dissent opinion – Constitution makes no provision making legislation a
condition of the entry into an international treaty in time either of war or peace – ‘If
the rights of the citizens or others which are justiciable and not affected, no
legislative measure is needed to give effect to the agreement or treaty’
Note: This also recognised the concept of self-executing and non-self-executing
treaties in India
Conclusion – If in consequence of the exercise of the executive power, rights of the
citizens or others are restricted or infringed, or laws are modified, the exercise of
power must be supported by legislation: Where there is no such restriction,
infringement of right or modification of the laws, the executive is competent to
exercise the power
(ii) Extradition Treaties:

Birma v. State – Rajasthan HC held that the, ‘Treaty of extradition in question did not have
any effect of law within the meaning of Article 21 and mode of deprivation of personal
liberty in that was not competent under that Article’ – HC made a general statement that
‘the treaties which are part of the IL do not form part of the land unless expressly made so
by the legislative authority’
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Nanka v. State of Rajasthan – Treaty of extradition in itself cannot legitimise an executive

order of arrest and detention of a fugitive, in view of the mandatory requirements under
Article 21

In India, legislative action is required if it affects the application of the existing laws,
imposes financial obligations, or otherwise requires specific legislative authority for
execution, or if the treaty affects the private rights – e.g., The UN (Privileges and
Immunities) Act, 1947 was enacted to give effect to the Convention on the Privileges and
Immunities of the UN, 1946; Similarly, the Geneva Convention Act, 1960 was enacted to
give effect to four Geneva Conventions of 1949 for the Protection of War Victims

III.3.5 INTERNATIONAL TREATIES VIS-À-VIS STATUTE LAW

WHICH SHALL PREVAIL IN CASE OF CONFLICT BETWEEN IL AND ML?

Jolly George Varghese v. Bank of Cochin: Whether Judgment debtor could be arrested and
detained in Civil Prison in execution of money decree? – Section 51 of the CPC interpreted by
the SC – J. Krishna Iyer referred to Article 11 of the ICCPR (‘No one shall be imprisoned
merely on the ground of inability to fulfil a contractual obligation’) – Held, Civil imprisonment
of an honest and bona fide judgment debtor in execution of decree is violative of Article 11 of
the ICCPR and Article 21 of the Constitution – Harmonious Construction

Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey: Appeal against the judgment of
Calcutta HC – SC interpreted the word “import” in Section 53, Indian Copyright Act in the
light of International Treaties such as Geneva Convention on High Seas, 1958 and Convention
on Transit Trade of Land-Locked States, 1965 – Nations must march with the International
Community and rules of ML must respect the rules of IL – Comity of the Nations require that
the rules of IL may be all accommodated in the ML even without express legislative sanctions

This case was affirmed in the case of Aban Loyd Chiles Offhore Ltd.v Union of India, which
dealt with the question, Whether the EEZs and Continental Shelf were deemed to be part of the
territory of India? (Question on levying of Customs and Duties on the area) – SC supported the
Blackstonain Doctrine – Reading the Provisions of the Part II, V and VI of the UNCLOS, EEZ
and the Continental Shelf are “deemed territory” of India

Union of India v. Sukumar Sengupta: 1974 and 1982 agreements between India and Bangladesh
concerning the use of Teen Bigah – No exclusive possession was sought to be transferred to
Bangladesh and no legal possession at all was transferred, only certain rights were transferred
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– SC had held it not amounting to lease but servitude suffered by India in its territory –
Implementation did not amount to cession of the said territory or transfer and no rights to
administer the said territory were transferred, only the Right to passage was transferred to
Bangladesh – The agreement do not require Indian Legislative action for their implementation

Nilabati Behera v. State of Orissa: SC held that in the case of the violations of human rights
by a State, compensation can be demanded in a Writ Petition – Article 9(5) of the ICCPR was
invoked by the SC for the purpose of granting compensation for the violation of the right to
life guaranteed under Article 21

Selvi v. State of Karnataka: India is not bound by International Convention which it has not
ratified but only signed, yet these treaties and conventions have significant persuasive value
for the Indian Courts – However, the Principles of IL, a signatory State, even though the same
has not ratified the convention, is obliged to ensure that it does not act in a way which
contravenes the spirit of the said convention

M.V. Elizabeth v. Harwan Investment and Trading – [Read from the Gurdeep Singh – Page 77-
78]: Defendant-Appellant, preliminary objection to the AP HC, was the plaintiff’s suit was
against a foreign ship owned by a foreign company not having a place a residence or business
in India was not liable to be proceeded against on the admiralty side of the HC – HC rejected
it which was further rejected by the SC by dismissal of the appeal – It is recognised Principle
of IL, a ship subjects itself to the jurisdiction of the foreign State as it enters its waters –
International Convention relating to the Arrest of Seagoing Ship, Brussels, 1952

People’s Union for Civil Liberties v. Union of India: PUCL filed a WP under Article 32 for
appropriate action against erring police officials and award compensation to the family of the
deceased person killed – Justice B. P. Jeevan Reddy invoked Article 9(5) of ICCPR,1966
(“Anyone who has been victim of unlawful arrest or detention shall have an enforceable right
to compensation”) while interpreting Article 21 of the Constitution – It is not clear as to whether
the Parliament has approved the action of the Government of India ratifying the said 1966
covenant

Australian case of Minister for Immigration and Ethnic Affairs v. Teoh – [Read from the
Gurdeep Singh – Page 79]: The UN Convention on the Rights of the Child was ratified by the
Commonwealth Executive in December 1990 and entered into force on 22 December 1992 –
Article 3(1) invoked for the best interest of the Child – Same Principle as Indian Court was
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highlighted, for the treaty to be given effect till it is not in derogation with the Australian Law,
since the same has not been incorporated into the Municipal Law

Vishaka v. State of Rajasthan: Whether Sexual Harassment at working woman amounts to

violation of rights of gender equality and the right to life and liberty guaranteed under Article
14 and 21? – SC held that in an accepted rule of judicial construction, regard must be has to
International Conventions and norms for construing domestic law when there is no
inconsistency between them and there is a void in domestic law – “Any International
Convention not inconsistent with its spirit must be read into these provisions to enlarge the
meaning and content thereof, to promote the object of constitutional guarantee” – This is
implicit under Article 51(c) of the Constitution of India – SC also invoked Article 11 and 24
of the Elimination of All Forms of Discrimination against Women

Union of India v. Azadi Bachao Andolan – [Read from the Gurdeep Singh – Page 81 - 83]: The
power of entering into a treaty is an inherent power of the sovereign of the State – If the rights
of the citizens or others which are justiciable are not affected, no legislative measure is needed
to give effect to the agreement or treaty (Mauritius Double Taxation Avoidance matter)

CIT v. PVAL Kulandagan Chettiar (Malaysia Double Taxation Avoidance matter) – [Read
from the Gurdeep Singh – Page 81 - 83]: In case of the provisions of the Agreement and the
Act, the provisions of the Agreement would prevail over, the provisions of the Act – “Taxation
policy is within the powers of the Government and Section 90 of the Income Tax Act enables
the Government to formulate its policy through treaties entered into by it …”

People’s Union for Civil Liberties v. Union of India: Question in controversy is, ‘whether a
former member of the Police force is eligible to become a member of the NHRC?’ – Paris
Principles adopted in a UN sponsored meeting, subsequently endorsed in UN Commission of
Human Rights and the UNGA – These highlighted the need for composition to reflect, wide
cross-sections of the nation – Justice Sabharwal relied upon the meaning which is in
consonance with the treaties Section 3(2)(d) has to read keeping in view the Paris Principles –
SC held that he was eligible and Paris Principles and UNGA Resolution could not be exalted
to the status of Covenants

T. N. Godavarman Thirumulpad v. Union of India: SC held that ‘Red Sandalwood’ shall be

included within the meaning of “Specifies Plant” under Wildlife (Protection) Act, 1972 – Court
perused CITES, under which Appendix II of CITES marked it as ‘endangered’ – This was
enforced because the same was not in conflict with the provisions of the ML
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Abu Salem v. State of Maharashtra: SC took the aid of ‘Convention for the Suppression of
International Terrorism’ to interpret the meaning and scope of term, “Explosive or Lethal
device” – Monist approach of the IL was reflected

Bhavesh Jayanti Lakhani v. State of Maharashtra: India follows the Doctrine of Dualism and
not Monism – In case of conflict, ML prevails over the IL