RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW:

A STUDY OF THE INDIAN PRACTICE

International Law

Submitted by
Vipin Pandey
SM0115059
Third Year, 6th Semester

National Law University, Assam

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Table of Contents
Table of Cases ............................................................................................................................ 3
Table of Statutes ........................................................................................................................ 3
Table of Abbreviations .............................................................................................................. 3
Introduction ................................................................................................................................ 4
Aim(s) ........................................................................................................................................ 5
Objectives(s) .............................................................................................................................. 5
Scope and Limitations................................................................................................................ 5
Review of Literature .................................................................................................................. 5
Research Questions .................................................................................................................... 6
Research Methodology .............................................................................................................. 6
THEORIES AS TO RELATIONSHIP BETWEEN INTERNATIONAL LAW AND
MUNICIPAL LAW ................................................................................................................. 7
 Dualism .......................................................................................................................... 7
 Monism........................................................................................................................... 8
PROCESS OF APPLYING INTERNATIONAL LAW INTO MUNICIPAL LAW......... 9
INDIAN PRACTICE ............................................................................................................ 10
Conclusion ............................................................................................................................. 13
Bibliography

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Table of Cases

1. Shri Krishna Sharma v. State of West Bengal

2. A.D.M. Jabalpur v. Shivkant Shukla
3. Gramophone Company of India Ltd. V. Birendra Bahadur Pandey
4. Birma v. State of Rajasthan
5. Shiv Kumar Sharma & ors. V. Union of India
6. Vishakha v. State of Rajasthan

Table of Statutes

Constitution of India, 1950

Table of Abbreviations

1. Art. Article

2. SC Supreme Court

3. HC High Court

4. Ltd. Limited

5. Eg. Example

6. Anr. Another

7. Ors. Others

8. v. Versus

9. AIR All India Reporter

10. SCC Supreme Court Cases

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Abstract
Since the topic of the study is “Relationship between International Law and Municipal Law: A
study of the Indian practice”, then nothing is more essential than a clear and proper
understanding of relationship between International Law and Municipal Law. It helps in
understanding the nature, scope, application, etc. of International Law into Municipal Law.
The first chapter of this project will deal with the introduction part. Second chapter will deal
with theories on relationship between International Law and Municipal Law. Third chapter of
this project will comprise of theories on application of International Law into Municipal Law.
Fourth chapter will deal with the implementation on International Law into Municipal Law in
India.

Introduction

While International Law is applied in the relations of the states and to other subjects of
International Law on the other hand state law which is also known as municipal law is applied
within the state on individuals and corporate entities who are the possessor of rights and duties
under it1. Evidently, it might be visible that there is merely a relationship between International
Law and Municipal Law, each of which is drafted to work in its own sphere and they are applied
in a different manner by different courts, but it is not so.

The problem regarding the relationship between International Law and Municipal Law is one
of the most controversial topic in legal theory. Earlier, the relationship between International
Law and Municipal Law was a matter of theoretical concern i.e. whether International Law and
Municipal Law are parts of a single legal system or they form two different legal system but at
present the question has taken a practical concern as well.2 When there exists a conflict between
International Law and Municipal Law, in this situation the court faces difficulty in arriving at
the decision. If the conflict takes place before an international tribunal then the question is
which law will prevail.3 If the conflict arises before a municipal court then, the answer lies on
how far the constitutional law of the country allows the International Law to be applied directly

1
Edwin Borchard, Relation Between International Law and Municipal Law, (1940). Faculty Scholarship Series.
Paper 3498. http://digitalcommons.law.yale.edu/fss_papers/3498
2
Dr. H. O. Agarwal, International Law And Human Rights, Central Law Publications, pg- 40.
3
Ibid(2)

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in the courts. It is to be noticed that International Law gives an individual certain rights, duties
and obligations which can be applied directly in the domestic courts. Usually, the manner in
which International Law is applied in the domestic courts of a country is largely dependent
upon the national law of that country. In fact, International Law cannot be applied into
municipal law without the co-operation and support of the national law. The question of
relationship between International Law and Municipal Law has gained importance in modern
International law because a very large portion of International Law is directly concerned with
the acts of the people who come under the jurisdiction of municipal courts.4 Thus, it is in the
municipal courts where international law is applied largely.

Aim(s):

The aim of this project to study the Relationship between International Law and Municipal
Law: A study of the Indian Practice.

Objectives:

The main objective of this project is to study the theories on relationship between international
law and municipal law. The other main objective of this project is to study the theories on
application of international law into municipal law and how it is applied in India.

Scope and Limitations

The scope of this paper is limited to the topic i.e. “Relationship between International Law and
Municipal Law: A Study of the Indian Practice”.

Review of Literature

Dr. H.O. Agarwal, International Law and Human Rights, Central law Publications, 2016

The book on International Law and Human Rights in a very understandable and comprehensive
manner. It is updated with all the necessary information on relationship between international
law and municipal law. The book deals in great detail with the topic “relationship between
international law and municipal: Indian Practice. It discusses about the theories governing the
relationship between international law and municipal law and also discusses about the process
of implementation of international law into municipal law. Moreover, it also discusses about
the cases related to implementation of international law into municipal law.

4
Dr. H. O. Agarwal, International Law And Human Rights, Central Law Publications, pg- 42.

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 V.K Ahuja, Public international law, Lexis Nexis; First edition (24 December 2015):

The book on Public International Law by V.K. Ahuja is a magnum opus. His illustrations and
expositions of the various principles have left indelible imprints of class on the book. The book
deals with each important topic in a comprehensive manner along with the illustration on decided
cases. The book deals with relationship between international law and municipal law in a very
detailed manner. It gives a comprehensive idea about the implementation of international law into
municipal law. Moreover, it also explains the Indian practice with regard to implementation of
international law into municipal law with some illustrations and decided cases.

Research Questions

 How International Law and Municipal Law are related?

 What are theories that defines relationship International Law and Municipal Law?
 What are the theories on application of International Law into Municipal Law?
 What is the role of the Indian courts in application of International Law into Municipal
Law?

Research Methodology

In this project doctrinal approach of research was taken. Doctrinal Research is a research in which
secondary sources are used and materials are collected from libraries, archives, etc. Books,
journals, articles were used while making this project. Further, explanatory type of research was
used in this project, because the project topic was not relatively new and unheard of and also
because various concepts were needed to be explained. MLA (Modern Language Association)
format of citation is used in this paper.

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 THEORIES AS TO RELATIONSHIP BETWEEN INTERNATIONAL LAW AND
MUNICIPAL LAW

The views of different jurists on the question of relationship between International Law and
Municipal Law are different which have led to emergence of different theories. Prominent
theories among them are as follows:

Dualism

According to the theory of dualism, International Law and Municipal Law are two different
and separate legal systems. Being different legal systems, International Law will not form part
of the domestic law until it is being adopted by the national law of the state and will apply as
part of the domestic law and not as International Law.5 Such a view avoids any question of
supremacy of one law over the other as each law is supreme in its own sphere.

The theory of dualism was developed by the German scholar Triepel in 1889 and later was
followed by Anzilotti.6 According to Triepel, the two systems differs from each other on the
following grounds:

 Sources
Municipal Law- According to theory of dualism sources of municipal law are customs,
legislations of the country, etc.
International Law- According to theory of dualism sources of International Law are
conventions, international customs, judicial decisions, etc.
 Subjects
According to the theory of dualism, subjects of International Law and municipal law
are different.
Municipal Law- It regulates the relation between individuals and corporate entities.
International Law- According to Triepel state is the only subject of International law
i.e. the entities which have rights and duties at the international forum to sue and to be
sued.
 Origin
According to Triepel municipal law originates by the common will of the people where
as International law is will of the states.

5
Dr. H. O. Agarwal, International Law And Human Rights, Central Law Publications, pg- 41.
6
Ibid(5)

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  Anzilotti agreed with all the differences but added one thing:
Municipal Law- It is followed because there is obligation to perform whatever is there
under state legislation, otherwise there will be sanction.
International Law- It is followed because of the principal of “pacta sunt servanda”.

Criticisms

 When it comes to the subjects, International law also regulates the actions of
individuals. For eg. Human Right Treaty
 There is no doubt that “pacta sunt servanda” is an important principal but it is not right
to say that it is the only principle on which International law rests.

Monism

The theory of monism was first given by Moser and Martens. However, it was fully developed
by kelson. According the theory of dualism, international law as well as municipal law are parts
of a universal body of legal rules that are binding on all human beings. Therefore, international
law cannot be distinguished from the internal law of states and is of importance only as a part
of universal legal body.7

In other words, monism postulates that national and international law forms one single legal
order. According to the thinkers of monism, states are nothing but abstract entity comprising
of individual to ensure security called security dilemma.

Kelson Grundnorm theory-

According to Kelson, International law is grundnorm, from where all other law derives their
validity. Kelson said law is set of rules and regulations for peace and if violated there is
sanction.

The same definition applies within both international and domestic spheres because state owe
their legal relationship to one another, to the rules of International law, such as posting equality
since state can’t be equal before the law without the rule to that effect, theory of monism
follows that International law is superior to municipal law.

7
S.B. Sinha J., “A Contexualised Look at the Application of International Law – the Indian Approach”, AIR Jour,
2004, p.33.

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 PROCESS OF APPLYING INTERNATIONAL LAW INTO MUNICIPAL LAW

International law is rapidly growing in today’s world and many of its laws are now being
accepted in municipal law. Such adoption can be done by way of direct adoption or by some
other way of adopting the said law.8 However, there are two methods of adopting international
law that are being followed by all nation. They are as follows:

 Doctrine of Incorporation
 Doctrine of transformation

Doctrine of Incorporation

Doctrine of incorporation can be referred as an automatic adoption of the international law into
municipal law without formal need for any official legislation by the legislature to sanction it
and give effect to it. Many countries automatically incorporate international law into domestic
law a treaty to which the state becomes a party. The domestic courts have applied the rules of
international law in a number of cases even if such rules are not being subject of any statute
enactments, because these usually accepted principles of international law become
automatically part of domestic laws (followed in Philippines). It means that the rules of
international law forms part of the law of the land and statutory enactment is necessary to make
them applicable in the nation.9 The doctrine of incorporation i.e. automatic reception does not
operate until there is some clear provision in the domestic law, such as a statute or judicial
decision which clearly specifies the use of international law. The fact that international law has
been made the part of the domestic law does not give primacy of international law over
domestic law in municipal sphere. The doctrine of incorporation is applied by many countries
but international law is given equal standing with the municipal law and international law is
not superior to municipal law.

Doctrine of Transformation

According to the thinkers of the positivist school of jurisprudence, municipal law is logically
a well-defined system in itself. The rules of international law cannot be adopted in municipal
law unless they go under the process of transformation and is adopted by the state law i.e. there
is no automatic reception. Each state will determine its own boundaries to adopt the rules of

8
Edwin Borchard, Relation Between International Law and Municipal Law, (1940). Faculty Scholarship Series.
Paper 3498. http://digitalcommons.law.yale.edu/fss_papers/3498
9
Ibid(8)

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international law. The rules of international law can be transformed into domestic laws and
then can be used in the domestic courts.10 Positivists regards treaties as promises and domestic
laws as commands. They contend that to make treaties binding upon the national laws, their
transformation is very crucial and mandatory. The difference between treaties and statues is
purely on the basis of form and procedure but for both treaties and statutes the object is same.

INDIAN PRACTICE

The Constitution of India, under art. 51 provides for the general obligations of India to the
world by stating that:

The state shall endeavour to

a) Promote international peace and security;

b) Maintain just and honourable relations between nations;
c) Nurture respect for international law and treaty obligation;
d) Encourage arbitration for settlement of international disputes.

The above article lies in part IV of the Indian Constitution i.e., Directive Principles of State
Policy. Art. 37 of the Indian Constitution which also lies in part IV provides that these Directive
Principles of State Policy are fundamental and it shall be the duty of the government to apply
these principles in making legislations and these directive principles are not justiciable i.e. they
are not enforceable in court.11 Although directive principles are fundamental in governance of
the country, it is the duty of the state to implement these directive principles by making laws.
Therefore, the Indian Constitution is devoted to promote international peace and security and
also to nurture respect for international law and treaty obligations and to apply these principles
in making legislations. It is to be noted that art. 51 of the Indian Constitution is too general and
no conclusion can be found regarding how far the rules of international law will be adopted by
the municipal courts. Art. 51 of the Indian Constitution is simply a commitment that India will
work for the promotion of International peace and security and to boost international law and
treaty obligation and settlement of international disputes by peaceful mechanisms like
arbitration. The application of customary international law and treaty obligations have been
discussed below.

10
M. Sivaraman, “Role of Indian Judiciary in Harmonising Municipal Law with International Law’, AIR,
Jour., 2003, at 211-12.
11
Constitution of India, 1950

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Customary International Law

As far as the adoption of customary international law is concerned, it seems that courts in India
follows the method of incorporation as followed in Great Britain. Therefore, courts in India
would apply rules of customary international law, only if they are not superseded by domestic
law. If rules of customary international law are in in conflict with municipal law than municipal
law will prevail. In Shri Krishna Sharma v. The State of West Bengal12, the Calcutta HC said
that the courts in India would apply national laws which includes,

a) The Constitution of India

b) Legislations enacted by the parliament of India
c) Legislations enacted by the state legislatures

The court held that if the Indian laws are in conflict with the rules of customary international
law, then the court will have to obey the national laws i.e. the laws enacted by the legislature
of the country. In explicating and adopting rules of customary international law, the courts will
try to adopt such a method as it will not bring international law in conflict with the municipal
law.

In A.D.M., Jabalpur v. Shivkant Shukla,13 justice H.R. Khanna in his differing opinion held
that if there is a conflict between rules of customary international law and municipal law then,
municipal law will prevail.

In Gramophone Company of India Ltd. V. Birendra Bhadur Pandey, 14 it was held that Indian
courts shall apply rules of customary international law to the degree that they are not
inconsistent with the domestic laws.

Treaties

As far as the application of treaty is concerned, they shall not be binding upon the courts in
India unless they have been adopted by legislation. Treaty which is not adopted by legislation
shall not binding on domestic courts. The above statement is on the basis of article 253 of the
Indian Constitution which provides that Indian Parliament can make laws for the whole or any
part of Indian for implementing any treaty, convention, agreement with any country or
countries.

12
AIR (1954) Calcutta 591.
13
AIR (1976) SC p.470.
14
AIR (1984) SC p.667.

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In Birma v. State of Rajasthan,15, it was held that treaties which are part of International law
do not form part of the domestic law unless expressly made by the legislature.

In Shiv Kumar Sharma & others v. Union of India,16 the Delhi HC held that in India treaties do
not have the force of law and hence obligations arising from the treaties are not binding on the
municipal courts unless they are adopted by legislation.

In Vishakha v. State of Rajasthan,17 the SC held that international conventions and norms are
to be read into them in the absence of enacted municipal law, involving in the field where there
is no unsteadiness between them.

15
AIR (1951) Raj., p.127.
16
AIR (1968) Del., p.64.
17
AIR 1997 SC p.3011.

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 Conclusion

The practice of states regarding the relationship between international law and municipal law+
is different. Adoption of the rules of international law in municipal law largely depends upon
the domestic laws and judiciary of a state. They are supposed to take notice and attempt to
honour the international obligations of the state. It has to be noticed by them that neither
international law nor municipal law is supreme but are consistent with each other. Both these
legal systems have been made to solve the issues of human beings in different areas and aspects.
If a state declines to accept the rules of international law than relations between the states will
clearly become tense and the state will face difficulty in maintaining international peace and
security.

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Bibliography

Books

 V.K Ahuja, Public International Law, Lexis Nexis; First edition (24 December 2015)
 Dr. H.O. Agarwal, International Law and Human Rights, Central law Publications,
2016

Articles

 Edwin Borchard, Relation between international law and municipal law, Yale law
school faculty scholarship series paper
 Rahul Saraswat, Relationship of international law and municipal law, Gujarat National
Law University, Gandhinagar

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