DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY
LUCKNOW

PROJECT WORK ON
Relationship between International Law and Municipal Law

SUBMITTED TO: SUBMITTED BY:

Dr. Abdullah Nasir Sanskriti Verma
Assistant Professor (Law) Section – ‘B’
(Public International Law) Enrollment Number-210101131
BA LLB. (Hons.) Semester-4
Dr. Ram Manohar Lohiya National Law University, Lucknow

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 ACKNOWLEDGEMENT

I express my gratitude and deep regards to professor Dr. Abdullah Nasir, for
her guidance and constant supervision as well as for providing necessary
information regarding the project, also for his support in completing the project.
I extend my gratitude to my seniors, who constantly helped me find the best
source for research. Finally, I acknowledge the authorities as well as the
caretakers of Dr. Madhu Limaye library, who provided me with the means to
make this project. This project is a result of my efforts combined with my
family and friends’ constant encouragement without which this assignment
wouldn’t have been possible.

THANK YOU
SANSKRITI VERMA
ENROLLMENT NUMBER-210101131

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 DECLARATION

I hereby declare that the project report analysis of “Relationship between

International Law and Municipal Law” submitted by me to Dr. Ram
Manohar Lohia National Law University, Lucknow, Uttar Pradesh in partial
fulfilment and requirement for the award of the degree of B.A. LL.B.(Hons) is
recorded of bonafide project work carried out by me under the guidance of Dr.
Abdullah Nasir.

I further declare that all the information and data that has been analyzed, and the
work done by me is my piece of work and authentic to the best of my
knowledge under the supervision and guidance of my constitution professor.

SANSKRITI VERMA
ENROLLMENT NUMBER: 21010113

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 INDEX

1- INTRODUCTION…………………………………………………………………….5
2- INTRODUCTION LAW………………………………………………………………6
3- MUNICIPAL LAW……………………………………………………………………7
4- RELATIONSHIP BETWEEN INTERNATIONAL LAW
AND MUNICIPAL LAW …………………………………………………………8-12
• MONOISM
• DUALISTIC THEORY
• CONSENT THEORY
• DELEGATION THEORY
• SPECIFIC ADOPTION THEORY
5- SOME CASES OF RELATIONSHIP BETWEEN INTERNATIONAL LAWS
MUNICIPAL LAW……………………………………………………………..13-15
6- CONCLUSION…………………………………………………………………15-16
7- BIBLIOGRAPHY …………………………………………………………………17

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 Relationship between International Law and Municipal Law

INTRODUCTION

There has been much discussion over how international law and municipal law relate for a
very long time. Do international agreements constitute a body of law? Is international law
separate from municipal and state law and autonomous? are the subject of much debate.
Answering these concerns is challenging since municipal law has a different factual
foundation than international law. In fact, international law has evolved in a manner distinct
from municipal law. The relationship has historically been defined and described from a
monist or dualist perspective. In the modern world, nations play a very complex role and
serve many different purposes. According to Malcolm Nathan Shaw's legal philosophy, every
state is equal and a sovereign state. In truth, not even the strong states can be sovereign given
the remarkable rise in communications and consciousness and the ongoing reminder of
international rivalry. As a result of interdependence and the close-knit nature of modern
international business and political society, almost any state move could have a significant
impact on the system as a whole and the options other states are considering. The different
illuminating views that have emerged because of the extensive thoughts of writers and jurists
on this topic each attempt to put the relationship between International Law and Local Law in
appropriate perspective. The following are the results of the survey. The function of the state
in the international system was concerned with the connection between a nation's internal
legal structure and the norms and values that guide the international community. While
International Law largely focuses on the relationships between nations, Municipal Law
regulates the municipal parts of government and deals with issues between individuals as
well as between persons and the administrative apparatus. In order to fully understand the
relationship between Municipal Law and International Law, this relationship must be taken
into consideration. One of the most disputed questions in legal theory is the relationship
between international and local law standards, and figuring out that relationship is now
important from a practical standpoint. While national or state law, also known as municipal
law, is applied to the individuals and corporate bodies that bear rights and obligations under it
within a state, it is not applicable to state relations or other areas of international law.

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INTERNATIONAL LAW
The contemporary system of international law, which has only existed for the past 400 years,
attests to the impact of numerous authors and jurists from the sixteenth to the eighteenth
centuries who developed some of its most important concepts. A set of rules, regulations,
conventions, and principles known as international laws are acknowledged on a global scale
as a framework for how one state should deal with another state in a variety of contexts,
including those involving conflict, diplomacy, human rights, trade, and other issues. In other
words, according to Black Law's Dictionary, it is a system that regulates international
interactions and takes into account both private citizens and non-governmental organizations.
Sea law, treaties between nations, international criminal laws, and many more laws are
examples of international law. International law is also known as public international law and
the law of nations.

“The legal system governing the relationship between nations; more modernly the law of
International relations; embracing not only nations but also such participants as International
organizations and individuals.” – Black Law’s Dictionary

The two subfields of international law are as follows:

• Jus Gentium: It is a group or organization that makes international law relevant to all
countries.
• Jus Inter Gentes: It has to do with agreements made between two countries that do not
hold true for other countries.

Treaties, customs, and general principles are the three sources of international law listed in
Article 38 (1) of the ICJ's statute. The production of international laws is inherently more
difficult than the creation of laws in domestic legal systems because of the horizontal and
decentralized nature of the international legal system. Municipal law is the national, local, or
internal law of a sovereign state, as opposed to international law. In addition to national law,
municipal law also includes federal, provincial, tribal, municipal, and local laws. It alludes to
the governmental bodies that rule particular towns or countries as well as the laws that govern
each of them. So, legislation passed by a state's legislature or other law-making body that is
only relevant to that state is referred to as municipal law.

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The Republic of Nicaragua v. The United States of America (1986)1 The International Court
of Justice (ICJ) ruled in the case of The Republic of Nicaragua v. The United States of
America (1986) that the U.S. had broken international law by aiding the Contras in their
uprising against the Sandinistas and by mining Nicaragua's harbors. With the payment of
compensation to Nicaragua, the case was ruled in Nicaragua's favor and against the United
States. Increased interstate participation is what led to the development of international law.
Its primary goal is to keep international peace and security among various states. It also aids
in the development of friendly relations between member states (of the international
community, such as the United Nations), the protection of fundamental human rights, the
resolution of international issues through international cooperation, the prohibition of the use
of force or threat of force over the territory of any other state, the protection of the right of
people to self-determination, and the use of peaceful means to resolve international disputes,
to name a few.

MUNICIPAL LAW

The body of laws known as municipal law is restricted to a specific county, state, or other
independent political entity. Municipal law is the domestic, international, or regional law of a
sovereign state. Any laws passed at the federal, state, provincial, territorial, regional, and
local levels are included in the category of municipal law. The law of the state may be
divided into various categories, although international law generally sees all of them as a
single body of law.

According to Black’s Law Dictionary, “municipal law” is defined as "the laws and ordinances
that are in force inside a city, municipality, or other local government organization."
Municipal law is thus legislation that is exclusively applicable to that state and is passed by
the legislature or another body that has the power to establish laws. In addition to governing a
municipality's operational procedures, responsibilities, and functions, municipal law also tries
to control its management, operations, and legal standing. The law also outlines the
procedures to be followed when determining, defining, and settling disagreements over
municipal boundaries. Regarding the organizational framework of municipalities, it discusses
the duties carried out by groups such as municipal councils, specialized committees, and
auditing committees as well as the steps involved in holding meetings and dissolving
councils. The mayor's duties, oversight of the police and fire services, and control over the

1
The Republic of Nicaragua v. The United States of America (1986).

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municipality's budget are also outlined in the code. This clause has been developed as a result
of state practice and decided decisions, making it difficult for parties to international
litigation to use municipal law as a means of evading the requirements of international law.
According to Article 27 of the Vienna Convention on the Law of Treaties, 1969, a state may
not rely on the fact that its expression of consent to be bound by a treaty was made in
contravention of a provision of its internal law relating to its authority to conclude treaties to
show that the treaty is invalid. In accordance with Article 46(1) of the same convention, a
party is not allowed to use the provisions of its domestic law as an excuse for failing to
comply with an international agreement. Nonetheless, the operation of the system of
international law is significantly influenced by domestic legal concepts. One method for
understanding and determining a state's legal position on a range of international law-related
topics is to examine local legislation.

RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

To understand the link between Municipal Law and International Law, one must take both
into account. One of the most difficult questions in legal theory is how international and local
law standards relate to one another. Determining how they relate currently has practical
implications. Whereas national or state law, commonly referred to as municipal law, is
applied within a state to the individuals and corporate bodies that bear rights and obligations
under it, international law is relevant to state relations and other international law matters.
The question of whether the Law of Nations and Municipal Law are components of a single
legal order or two distinct legal systems was initially only a theoretical one. The most crucial
question that must be answered by an international tribunal is whether international law
supersedes local law or vice versa. Due in part to how much current international law is
concerned with the activities of people who are subject to municipal courts, the relationship
between the two systems has gained relevance. As a result, municipal courts are applying a
greater amount of international law.

Understanding how elements of international law are absorbed into domestic law and what
occurs when the laws conflict is crucial. The key theories that describe the relationship
between international and municipal law are as follows.

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Monism

The monist approach, as its name implies, views laws as a single thing and opposes the idea
of dividing these two divisions into international and municipal laws. The unitary idea of
laws is adhered to by the Kantian philosophy of law, which serves as the foundation for the
monist theory. It claims that all laws have a single source and that any local or domestic law
that conflicts with international law is unenforceable. It rejects dualism's assertion that it is
necessary to convert international law into local law. Monistic essentially refers to the
coherence of the legal systems. According to this perspective, there is no distinction between
local law and international law. Those who subscribe to this view believe that the body of law
and the science of law make up a single law known as international law. German scholars
Moser (1701–1785) and Martens created the monistic theory (1756-1821).

Municipal law and international law are both components of one universal legal system that
in some way or another serves the requirements of the human community, according to
monistic theory. Every law is made exclusively for individuals, according to monism. They
are subject to municipal law directly, but States are subject to international law. Both laws are
related to one another since they are intended to address issues facing people in various
contexts. Both legal systems' ultimate subjects, in their view, are people.

National Law and International Law are two branches of the same body in the science of law.
According to this theory, municipal law is inferior to international law. All legal matters,
whether national or international, should be handled in accordance with international law. If a
state has ratified the international law of human rights and municipal law infringes a person's
freedom, that person may assert that the local legislation also violates international law.
Hence, in this instance, the municipal legislation will be deemed unenforceable and
international law will take precedence. According to this theory, municipal laws are never
preferred over international law, and in the event of a disagreement between the two,
international law will take precedence.

Dualistic theory

According to the dualism idea, there are two distinct branches of law: local or municipal law
and international law. This idea holds that these two laws must operate independently of one
another in accordance with their origins, guiding concepts, and subjects. It emphasizes the
principle that while municipal and international law exists in two distinct contexts, they do
not supersede one another. The dualism theory holds that no international law can have an

9
impact on a person unless it has been made into a state or domestic law. The core idea of the
dualist theory is that these laws can be transformed. According to dualistic theory, since it is a
different legal system, international law is not incorporated into domestic law. Such a position
puts an end to any discussion of whether one kind of law is superior to the other because they
do not have any common bases or areas of application. Each is king in their respective
spheres. The dualists contend that since only States and not persons are subject to
international law, States are free to regulate their domestic affairs as they see right and that
there is little to no connection between international law and local law. In 1899, eminent
German scholar Triepel put out this notion. Subsequently, the concept was embraced by
Italian jurists Anzilotti and Starke. The authors claim that there are differences between the
two legal systems in terms of their sources, subjects, legal content, guiding principles, and
subject-matter dynamicism. According to the dualist theory's proponent, there is no conflict
between municipal and international laws, and their objectives are not the same. Only
national borders are subject to internal norms, which cannot conflict with international law.
Only at the international level is the International Law applicable in this case. The State must
submit them through a legal notice that makes the application easier for the International Law
to be implemented in the State. At both the international and national levels, people will
encounter the nationalization of the convention. According to dualism, national and
international law are two distinct legal orders that share a common international duty.
Different legal sources are used in these two systems. International law is used to resolve
disputes between nations, while national law is used to resolve disputes within one nation. If
national legislation conflicts with international law in a true dualistic nation, it does not
become void unless it has already been converted into municipal law.

Consent Theory

John Locke described the development of this philosophy and derived the adage "Everyone is
equal" from it. This presented a number of issues, including the fact that treaties and customs
were not the only sources of international law. According to this idea, every participant to a
contract can accept all provisions of international law.

The Universal Principles of Law Recognized by Many Civilized Nations are the source of
International Law, according to Article 38(1) of the Tribunal Statutes. It aids judges in
developing international legal knowledge. This demonstrates the fact that compliance with
international law is not always required. Treaties go outside of the scope of the consent thesis.

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The approval of a third country is not necessary to enter into an agreement with another
nation. Hence, no third country may intervene in any dispute involving a State.

As an illustration, this theory supports the idea that the UN should impose requirements on
third countries to operate in conformity with the UN Charter's ideals in Article 2 of the UN
Charter. So, the consent thesis is primarily for international peace and security between
sovereign nations, by which two nations can maintain a favorable relationship with one
another.

Delegation Theory

According to this idea, there are constitutional provisions in international laws, and it is up to
the state to determine whether international laws should be applied to its or an individual's
internal affairs and under what circumstances. Therefore, the state has the authority to
determine which international law should apply to its municipal legislation. Under this
philosophy, there is no notion of superiority. According to this theory, each state's constitution
is granted a right by the principles of international law known as "Constitutional Rules of
International/Treaties," allowing each state to choose for itself how and when the provisions
of an international treaty or convention come into force and how they are carried out or
incorporated into statutes. Monists have advanced this theory, which holds that each state or
sovereign has absolute rights established by international law known as "constitutional rules
of international law or treaty," which allows the states or sovereigns to adapt the extent of
international law applicable in the state, in response to criticism of the previous theory and
the critics of the transformation theory. In other words, based on its absorption into municipal
law, governments can decide when and to what extent international laws are to be applied in
the state and on their citizens. As a result, contrary to the preceding notion, there is no
modification or adoption of international law. There is only one act that is accepted to create
the international regulations that the state needs, with no additional laws being incorporated
into state law. State law is essential for the proper operation of the state; hence it is the
legislature's duty to pass laws that are advantageous and significant to the state. The adoption
hypothesis allows the state to apply international law in accordance with its needs and
requirements. With the help of the Internet, you may find a lot of information on the Internet.
This theory's detractors think it was developed as an answer to the dualism theory.

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Specific Adoption Theory

It is founded on the dualist theory. This concept states that no international law may be said to
be immediately transformed and applied by municipal courts and systems before it can be
said to be enforced by municipal courts on its own force. International law rules only become
a component of national law if they are explicitly adopted. It contends that only after being
expressly ratified by domestic laws can international laws be applied to domestic laws. It is
necessary for international law to be converted into local law. For example, the international
covenant on civil and political rights and the international covenant on economic, social, and
cultural rights have been adopted by India under the Protection of Human Rights Act, of
1993. The view that international law is transformed or adopted by municipal law is not true
in an absolute sense because there are some norms that are linked with the state at the will of
international law. It is predicated on the dualist idea. According to this argument, no rule of
international law can be said to be enforced by municipal courts on its own authority until it
goes through a transformation process and is formally approved by municipal courts and
institutions. Only when specifically embraced are international law component of municipal
law. A second method, special adoption, requires legislation in order to give treaties
Municipal effect. Specific Adoption Theory says that International Law cannot be applied in
sovereign states unless and until the sovereign state specifically adopts that Law by way of
enactments. Positivists support this theory. For example, International Covenant on Civil and
Political Rights and International Covenant on Economic, Social and Cultural Rights have
been adopted in India under the Protection of Human Rights Act, 19932

Some Cases of the relationship between Municipal Law and International Law

In Visakha v. state of Rajasthan (1997)3 A similar question as to the effect of the provision
of international conventions enforceable by the courts was taken into consideration by the
Court. The issue was to make the workplace safe for women and protect them against sexual
harassment so that Women are not stopped from exercising their fundamental rights. While
coming to a decision the Court relied upon Articles 14, 15, 19(1)(g) of the Constitution read
with Article 51(c), Article 253, Article 73, and entry 14 of the union list in the Seventh
Schedule. Opined that if the provisions of the conventions are not consistent with the

2
http://www.lawnotes.in/Theories_relating_International_Law_and_Municipal_Law#ixzz3LFdsxNky
3
Visakha v. State of Rajasthan (1997) 6 SCC 241).

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fundamental rights as guaranteed under the Constitution should be right read such as to
enlarge the meaning of the provisions with that of fundamental rights and promote the basic
objective of the rights guaranteed under the Constitution. Therefore, the international laws
when ratified make a part of the municipal laws until and unless there is no conflict with the
provisions of municipal laws.

In Re Beru Bari Union and Exchange of Enclaves (1960)4 In a similar situation, the issue
of whether the parliament may grant a foreign nation control over an Indian region under
Article 3 was raised. The Berubari Union No. 2 territory was in west Bengal at the time of the
India-Pakistan partition, according to the case's facts. Nonetheless, there has always been a
disagreement between India and Pakistan regarding the land. As a result, the prime ministers
of Pakistan and India agreed to swap the Cooch Bihar enclaves, which were part of Pakistani
territory, for the berubari enclaves. The Supreme Court heard a case challenging the situation.
The Supreme Court ruled that Article 3 of the Constitution only permits the government to
absorb newly acquired territory and that it only permits the parliament to change the Indian
territory domestically. The agreement can only be made after altering Article 368 of the
constitution because there is no authority given to cede an Indian area to foreign countries.
Nonetheless, the Court ruled that because the Berubai agreement calls for the cession of the
nation's internal territory and because Article 1 of the constitution would be used to carry it
out, the Indian government may implement the Berubai agreement by changing Article 368.
To implement the India-Pakistan agreement about the cession of territory, the 9th
constitutional amendment was ratified.

In D.K Basu v. State of West Bengal (1996)5 In this case, the Supreme Court had a different
opinion from that of the Kerala High Court. An international treaty on civil and political
rights was ratified in 1966 by the government of India. The government held back from
ratifying the treaty a provision that offered compensation to those who had been unfairly
jailed or imprisoned. The Supreme Court held the opinion that this reservation is no longer
acceptable because the Court has previously compensated people whose basic rights were
violated. This ruling so demonstrated the supreme court's willingness to accept modifications
for the benefit of society as well as its support for the international agreement that India
accepted.

4
Re Beru Bari Union and Exchange of Enclaves (1960) 3 SCR 250.
5
D.K Basu v. State of West Bengal (1996) (1) SCC 416.

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In Shri Krishna Sharma v The State of the West Bengal6 the Calcutta HC stated that if the
Indian Laws conflict with any principle of International Law, the Indian Courts will have to
obey the laws passed by the legislature of the country to which they owe their allegiance. The
courts will attempt to adopt a construction when interpreting and applying municipal
legislation so as not to clash with the rights and obligations derivable from internal law
norms. The courts have precedence over municipal law whenever such norms, rights, or
obligations conflict with that body of legislation. In these situations, attempting to reconcile
through the strained building with something that is truly irreconcilable is pointless.

In Vellore Citizen Welfare Forum v Union of India7 stated that the "polluter pays principle"
and the "precautionary principle" are both included in the country's environmental law. Even
otherwise, once these principles are accepted as part of the Customary International Law
there would be no difficulty in accepting them as part of domestic law. It is an almost
universally acknowledged legal principle that the norms of customary international law that
do not conflict with local laws are presumed to have been incorporated into domestic law and
are upheld by legal tribunals.

Barcelona Traction case (Belgium vs. Spain)8 In this instance, the Barcelona Traction Light
and Power Company Limited, which had its headquarters in Toronto (Canada), was
incorporated in 1911. The corporation formed a variety of companies, some of which were in
Canada and some in Spain, to construct and develop power plants and distribution systems in
Spain. The majority of Spain's electrical demands were met in 1936 by a subsidiary. The
Spanish government denied the Belgian government's assertion that it became evident that
Belgian citizens possessed the majority of Barcelona Traction's share capital a few years after
the First World War. Barcelona Traction had issued a number of bond series, primarily in
sterling. Barcelona Traction, which was influenced by a subsidiary in Spain, provided service
for sterling bonds. Due to the Spanish Civil War, Barcelona's crane bonds were no longer
maintained in 1936. The Spanish exchange control authority forbade the transfer of foreign
cash required to resume services on pound bonds after this War. The Belgian government did
not verify the currency transaction when it claimed that the transfer shows that the foreign
currencies must be used to settle obligations with actual foreign capital from Spain.

6
Shri Krishna Sharma v The State of the West Bengal [1954] AIR 1954 Cal 591.
7
Vellore Citizens Welfare Forum v. Union of India [1996] AIR 2715.
8
Belgium vs. Spain [1970] ICJ GL No 50.

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This case, which shows the distinction between people who are naturally sovereign at the
national and international levels, was rejected by the court. Because Belgium was not to
blame for the conflict that broke out in Spain and because shareholders who needed
compensation were not granted diplomatic immunity, the court found in favor of Spain. But,
if the shareholder is situated in Canada and has the proper identification, a case might be
brought. Consequently, a person cannot take action against one Country since the country has
not been given power. This situation is regarded as a good example of what the government
expects.

Additional District Magistrate, Jabalpur v. Shivkant Shukla9 Many opponents were

detained following the emergency that was proclaimed in 1975 in accordance with the
Preservation of Internal Security Act. According to Judge Beg, the UDHR is a component of
the Indian Convention, and as Article 21 has been suspended, no relief may be given. He also
objected to the UDHR being a municipal legislation. When there is a dispute between
municipal law and international customary law, the court shall apply municipal law,
according to Justice H.R. Khanna's dissenting opinion. Yet, if there are two viable
interpretations of municipal law, the court would choose the interpretation that municipal
legislation should be in accordance with treaty commitments or international law.

Conclusion

It is well established that municipal law and international law operate inside their own
borders without posing any fear of reprisal or revenge against one another. Both of these
structures are important and frequently useful, and they also interact with one another in the
present in connection to a number of different situations. International Law is regarded as
superior to Municipal Law because Monist theorists contend that it can resolve any issues
that have developed within any State. The idea that international law is the law that applies
between nations has been disproved over time. It now encompasses people as well.
International Law began to move toward a human commonwealth that included people,
governments, and other aggregates that cut beyond national lines. Most people think of
monism and dualism as two conflicting conceptions of how international law and municipal
law interact. Several contemporary scholars believe that monism and dualism have limited

9
Additional District Magistrate, Jabalpur v. Shivkant Shukla [1976] SC 1207.

15
explanatory value as theories because they are unable to explain how international law
operates within States.

Whatever else, monism and dualism are powerful analytical tools. They serve as dependable
starting points for investigations into the relationship between international and municipal
law. Monism and dualism have been identified by several experts as potential frameworks for
understanding recent decisions made by municipal courts regarding international law. The
link between international law and municipal law is a contentious topic. Every state is
required to abide by international accords and bear the consequences of any violations.
Nonetheless, they also keep their local laws distinct from international agreements.
Nonetheless, we may observe the infiltration of international laws into local legislation,
which intensifies this dispute. States are known to apply international law when it benefits
them, which reduces discrepancies and strengthens the unified legal system. However, it
should be noted that these theories do not always hold true and that only one of them is
universally recognized. Also, as shown in India, any contradiction between the two laws
results in the local law predominating, but this does not imply a disregard for the treaties and
laws established by various organizations with regard to international laws. In conclusion,
international law is a separate body of rules whose manifestation in a state is solely reliant on
the rules of municipal laws and the legislative bodies.

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 BIBLIOGRAPHY

1- https://lawcorner.in/relationship-between-international-law-and-municipal-law/
2- https://www.legalserviceindia.com/legal/article-7760-relationship-between-
international-law-and-municipal-law-with-reference-to-indian-approach.html
3- Referred from
http://www.lawnotes.in/Theories_relating_International_Law_and_Municipal_Law#i
xzz3LFdsxNky
4- https://www.academia.edu/14342446/Relation_between_International_law_and_Mun
cipal_Law

17