View Full Version : What is meant by the relationship between international law and municipal law.

09-05-2012, 10:00 PM
Q. What is meant by the relationship between international law and municipal law. explain various theories in this regard. (1997)
Q. To what extent can municipal court apply international law? answer with reference to British and US practices (1998)
Q. How and to what extent can state. municipal court apply public international law your answer have to be in line with the following aspects of the topic.
(a) Various theories on the topic of relationship between municipal and international between municipal and international law.
(b) Pakistan, British and U. S practice. (2000) (2001)
Q. Explain the role of international law before municipal court and position of municipal law within international sphere. (2004)
Q. What are points of difference between international and municipal law. (2003)
Q. Discuss fully various theories advanced with regard to the relationship between international law and municipal law is the actual state practice is conformity with these theories. (2007/A)
1. Introduction:
International law regulates relation among states municipal law governs the domestic aspects of the government and deals with the issues between individuals and between individuals and administrative apparatus. municipal law is also known as national law or state law. the international law and municipal law are different from each another.
2. Theories about relationship between international law and municipal law:
Following are theories about relationship between international law and municipal law.
(a) Monistic theory.
(b) Dualistic theory.
(c) Specific adoption theory.
(d) Transformation theory.
(f) Delegation theory.
(a) Monistic theory:
According ti this theory all laws as a single unit composed of binding legal rules. Keslson, wright and Duguit are chief exponents of this theory. according to them international law and municipal law are essentially one, in as much as the former regulates the conduct of states, which the latter of individuals. these two laws are two phases of one and something and not different from each other.
Kelson's views:
"Science of law is a unified field of knowledge and the decisive point is therefore whether or not international law is true law. once it is accepted as a hypothesis that international law is a system of rules of a truly legal character, it was impossible to deny that the two systems constitute part of that unity corresponding to the unity of legal system."
Monistic theory has seen severely criticized. this theory has failed to explain the status of slaves and pirates and other individuals who are regarded as the subject of international law by the jurists of international law by the jurists of other school of thoughts.
(b) Dualistic theory:
This theory is also known as Plurastic theory . according to this theory international law and municipal law are two different laws. tripel and anzilotti are chief exponent of this theory.. the subjects of international law are states only while the subjects of municipal law are individuals. the source of municipal law is the will of the state itself whereas the source of international law is the will of states.
Anzolotti's views:
According to Anzolotti there is difference between the fundamental principles of the international law and municipal law. the basic principle of state law is that, the state legislation must be obeyed whereas the basic principle of international law is Pacta Sunt Servanda agreements between states are to be respected.
In practice we find that primary concern of the international law is the right and duties of the states. one can not say that pirates, slaves and highjacker are the only subject of international law.
Case: 1965 convention of the settlement investment.
(c) Specific adoption theory:
The chief exponents of this theory are Holland, Gray and Lawrence. according to them international law cannot be directly enforced in the field of municipal law. international law is applicable in a state only when municipal law permits its specific adoption.
(d) Transformation theory:
According to this theory, it is the transformation of the treaty into national legislation which alone validates the extension to individuals of the rules. set out in international agreements international law cannot find place in the national or municipal law.
Case law
Cheung v. Regina 1939
"Treaty can bind the subjects of a state only where it has transformed into the law of the state."
(f) Delegation theory:
According to delegation theory there is delegation of a right to every state to decide for itself where provisions of international law or convention are came into force. this theory has been presented by the critics of transformation theory.
3. Practice of states regarding application of international law in municipal sphere:
I. Position in britain:
There is distinction between the customary rules of international law and the law laid down by the treaties with regard to their operation in great Britain the customary rules of international law treated an part of British laws.
(A) In regard customary rules of international law:
The British courts treat customary rules of international law as a part of their own law.
(B) In regard to treaties:
In regard to treaties British practice is based on conventional principles governing the relationship between executive and crown and parliament.
II. Position in U. S:
(A) In regard to customary rules:
The customary rules are treated as part of U. S laws.
(B) In regard to treaties:
It is different from British practice. treaties and state law are equal in force. in case of conflict latter in date prevails.
III. Position in france:
Rules of international law are considered part of state law and treaties are administered and applied by French courts.
IV. Position in Russia:
According to the principles of the civil legislation and civil procedure of the Soviet, Union, in case of conflict between international law and Soviet Federal Statue the former shall prevail but if there is a conflict between an international treaty and the provisions of the Soviet Constitution the latter shall prevail over the former.
V. Position in Pakistan:
In Pakistan courts are empowered to interpret the rules of international law in municipal sphere.
Case law
Messers Najib Zarb L T D v/s Govt. of Pakistan 9PLD 1993 Karachi 93)
Municipal law must respect the rules of international law. if there is no conflict the international law shall prevail if there is conflict the municipal law shall prevail.
4. Distinction between international law and municipal law:
I. As to relation:
International law deals with relations of sovereign states with each other.
Municipal law deals with rights and duties of individual subjects.
II. As to application:
International law is applicable to all states.
Municipal law applies to one state.
III. As to enforcement:
International law has not power and machinery for enforcement.
Municipal law has power and machinery for enforcement.
IV. As to jurisdiction:
International law involves foreign element as to jurisdiction.
Municipal law does not involve foreign elements as to jurisdiction.
V. As to conflict of laws:
International law does not involve conflict of system of laws.
Municipal law may involves conflict of laws.
VI. As to source:
International law is not out come of legislation of sovereign authority.
Municipal law is out come of legislation by national parliament.
5. Conclusion:
To conclude it can be said that international law and municipal law are important laws. both international law and municipal law have almost law. however international law is distinguishable in many respect from municipal law.