Profile
Settings
Refer your friends
Sign out
Check here: IAS Final Result 2023
The state plays a vital role in the governance of the country. Traditionally, the state’s defined role had merely local laws to govern the state. The laws were only limited to protecting the citizens of the country. But, as there was the evolution of societies, international laws also became necessary for the society to make cordial relations with them.
Therefore, the state’s role became complex and not limited to the inner administration. It has to reduce rivalries among various states as there is massive interdependence among the states as a part of globalisation. So, all these factors lead to the emergence of international laws. So, all these factors lead to the emergence of international laws. But, at the same time, there emerged a conflict as to which law is superior and which is to be overruled. We must understand the relationship between international and municipal laws for this answer.
Discover Unacademy UPSC Offline Centres in the following locations
What is International Law?
International laws are a set of rules, regulations, norms, and principles for a state accepted internationally as a guideline for a state to interact with another state in various sectors such as war, diplomacy, human rights, trade, and other matters. In other words, according to Black Law’s Dictionary, it is a system that governs the relationship between nations which considers individuals and international organisations. Some international laws are Sea law, Treaties among the countries, international laws for criminals, and many other laws.
There are two branches of International Law:
- Jus Gentium: It is a body or organisation that makes the law applicable to all the nations of the world.
- Jus Inter Gentes: It is related to the agreements between two nations that do not apply to other nations.
What is Municipal Law?
According to Black Law, it is the ordinance and laws applicable in the city, town, and other local entity of the society. Therefore, a municipal law is considered a local or national law applicable within a defined territory. It is for the domestic and internal purposes of a sovereign state against the essence of international law.
Check out the complete UPSC Syllabus
Relationship between International and Municipal Laws
It is always essential to study the relationship between international and municipal laws because there are some instances where international law becomes a part of domestic law. So, if such a situation arises, which rule must be followed? To explain such a situation, you must understand the relationship between these two laws, and for this, there are some theories.
Dualism
Dualism is a theory that considers local or municipal law and international law as two different branches of law. According to this theory, as per their sources, principles, and subjects, these two laws must act independently. It stresses the rules that international and municipal law exists in two different scenarios, and therefore they do not overrule each other.
According to the dualism theory, any international law cannot affect an individual from the state until it has been transformed into a state or domestic law. The transformation of such laws is the crucial doctrine of dualist theory.
Visit to know more about UPSC Preparation Books
Monism
As the name suggests, the monist approach considers laws as a single entity, and they are against the idea of separating these two branches as international and municipal laws. The monist theory is based on the Kantian philosophy of law which follows the unitary conception for laws. It says that the laws are derived from one single source, and any local or domestic law contradictory to international law is invalid. It does not believe in the claim of dualism that there is a need to transform international law into municipal law.
The example for this claim is that if a state has ratified the international law of human rights, and any municipal law violates an individual’s freedom, that person can claim that the municipal law violates the international law. So, in this case, the municipal law will be considered invalid, and international law prevails. This theory always considers international law superior to municipal laws, and if any conflict arises between these two laws, international law will prevail.
Specific Adoption Theory
This theory is related to the dualist theory. It claims that international laws can only be applied in domestic laws when adopted explicitly by domestic laws. There is a requirement for the transformation of international law into municipal law.
Delegation Theory
This theory explains that there are constitutional provisions in international laws, which claims that it is on the state to decide which international law must be applied to the internal matters of the state or individual and in which condition. So, here the power is in the state to decide which international law is applicable in its municipal law. There is no superiority concept in this theory.
Also read UPSC Notes
Harmonisation Theory
It is a separate approach from the dualist and monist approach. It was formulated by Rousseau and Fitzmaurice, who tried to explain that each law is supreme in its sphere. The dualist and monist theory does not successfully define the relationship between international and municipal laws as to which law is superior to others. Harmonisation theory explains that if there is any conflict between municipal and international laws, domestic laws will be applicable in the domestic sphere and separate the state’s obligations to the international laws. It suggests that the courts must try to minimise the differences between these two laws through the harmonisation process, ultimately leading to equivalent positions for both these laws.
Conclusion
The debate of the relationship between international and municipal law is complicated. Every state has to oblige the international treaties and face the brunt of its breaches. However, they also maintain their municipal laws separate from international treaties. Still, we can find the penetration of international laws into municipal laws, and therefore this debate is intensified. It is seen in the world that states practice international law when it is in their favour, and thus, it minimises the differences and intensifies the harmonised judicial process.
