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 behavior. In other words, International law is a set of rules that apply when state interacts with each other. While Municipal law is also known as the national law of the country.
There are various theories to recognize the difference between these two laws. These theories are:-
1.) MONISTIC THEORY:-
- 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 that is 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 means to be dealt with by international law itself.
OPINION OF LAUTERPACHT:-
- 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 example – Human rights are available in national as well as in international legal system
- National or 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 interest of the people.
KELSEN ON MONISTIC THEORY:-
- The student who were with kelsen while he was researching this theory found a hypothesis solution.
- After detailed analysis kelsen got the document which were necessary for the theory’s confirmation. Kelsen explains that Monistic theory states the international law, as well as various state legal system constitute a unified system of law.
- The idea he point out that is “one can conceive of international law together with the state legal systems as a unified systems 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 alleged that municipal law is not in accordance with international law it appears that it will be more difficult to maintain the new laws due to actual historic circumstances.
- This is the way how kelsen get some original documents on monistic theory.
OVER ALL OPINION ON 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.
2.) DUALIST THEORY:-
A dualistic view of the relationship between Municipal and international law is presented by the H. Trieped in a more rigorous form in his textbook, “Volkerrecht and landesrecht”.
BASIC REGULATIONS OF DUALIST THEORY:-
- There are no rules for transferring rights and obligations from one system to another because the individual are resident 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 law and international law and that these provisions do not have the same goal. Internal rules apply to 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 level.
- Dualism teaches that national and international law are two separate legal system with the same international responsibility. These two systems have different legal source National law is used for issue inside the state and International law is used for solving problems between two states.
CRITICISM OF DUALIST THEORY:-
Dualism has been widely criticized-
- Firstly, this view states that international laws and municipal law are different from each other as international law can’t be part of municipal law and it also it can’t be regarded as absolute state 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 his 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 mistake they can be punished with international law. For example- 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.
3.) CONSENT THEORY:- (COMMON THEORY)
- The evolution of this theory was given by the 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 states of international law. All provisions of the international legal system in this theory can be accepted by any party in contractual agreement.
- Articles 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 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.
4.) 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 of judgment. It is not entirely clear about the rules of customary international law with regards to international treaties.
- Sovereignty has the authority to conclude or ratify treaties to bind Britain under international law. However these contracts do not affects municipal law until they are adopted by parliament.
- But judges will sometimes consider the provision of international treaties. Example- human right issue. In the implementation of community law.
- National and International legal system 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 believes that International law is higher than municipal law because monist theory believes that International law is higher than municipal law because it can solve any problems which have arisen with in any state.
- Keelson also believes that International law covers all expects of human life. Monistic theories view that International law does not come under any law rather than municipal law part of International law.
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