This article is written by Aksh Pandey,IAMR Law College, 6th Sem LLB student during his internship at LeDroit India.
Abstract
International law and municipal law are two fundamental legal systems that govern relations in different legal spheres. While international law regulates the conduct of states and citizens on a global level, municipal law applies within a state’s boundaries, focusing on internal governance. This paper provides a comparative analysis of these legal systems, covering their legislation, theories, and organizations such as the United Nations and its affiliated bodies. It further examines the pros and cons of each framework, exploring their historical evolution, contemporary developments, and case laws.
The paper delves into the differences between international and municipal law, highlighting their distinct applicability and scope. International law governs treaties, diplomatic relations, and global cooperation through entities like WHO, UNESCO, and the International Labour Organization. In contrast, municipal law addresses civil, criminal, commercial, and trade regulations within a state. Despite their separate domains, overlaps exist in various legal aspects, creating areas of conflict and coordination. This research also discusses recent legal transformations and provides suggestions for improving harmonization between the two systems. By evaluating their respective strengths and limitations, this paper emphasizes the significance of both legal frameworks in maintaining order at national and international levels.
Keyword; International law, municipal law, theories, united nation, legislation, organizations, pros and cons, comparison, states and citizens, legal spheres.
Introduction
International law, also known as the Law of Nations, comprises a body of customary and treaty-based legal norms that are binding upon sovereign States in their interactions. It encompasses principles of general applicability governing the conduct of States, international organizations, private individuals, minority groups, and transnational corporations in international relations. International law is fundamentally the aggregation of legal rules recognized by civilized States as guiding their conduct towards each other and their respective subjects.
Municipal law, conversely, refers to the domestic legal framework of a sovereign State, including national, provincial, territorial, and local laws. Unlike international law, which perceives all levels of municipal law as a singular entity, domestic legal systems categorize them distinctly. Furthermore, international law does not differentiate between a State’s constitutional law and its ordinary legislation. The extent to which international law is integrated into municipal law is contingent upon the constitutional framework of each State. Some States adopt a monist approach, wherein international law is automatically incorporated into municipal law, while others adhere to a dualist approach, requiring formal adoption through legislative acts.
The application of international law within municipal courts is primarily a matter of domestic jurisprudence. Public international law does not prescribe a uniform approach, leaving each State to determine its relationship with international legal norms. A critical distinction between international and municipal law lies in their enforcement mechanisms. Municipal courts possess a structured enforcement apparatus, ensuring compliance through judicial and executive actions. Conversely, international law lacks a centralized enforcement authority, relying instead on State cooperation and diplomatic mechanisms for implementation. The absence of a supranational legislative body in international law further underscores the principle of sovereign equality among States. Thus, while municipal law operates through codified legislative enactments and judicial review, international law functions through treaties, customary practices, and principles recognized by the global legal order.
INTERNATIONAL LAW
Definition of International Law
1. Oppenheim: “International Law is the body of rules legally binding on States in their intercourse with each other. These rules are primarily those which govern the relations of States, but States are not the only subjects of International Law. International Organizations and, to some extent, individuals may be the subjects of rights conferred and duties imposed upon International Law.
2. Hall: According to Hall, ” International Law consists in certain rules of conduct which the modern civilized states regard as being binding on them in their relationships with one another’.
3. J.G. Starke as “that body of Law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other.”
International Law, traditionally concerned with the legal relations among independent sovereign states, has evolved to encompass the regulation of international organizations and the interactions between states and individuals. Despite this expansion, sovereign states remain the primary subjects of International Law. Consequently, the role of states in the formulation, adherence to, and enforcement of International Law remains paramount.
Black’s Law Dictionary defines this body of law under various terms, including “Public International Law,” “Law of Nations,” jus gentium, jus gentium publicum, and jus inter gentes. The term “interstate law” also denotes legal relations between sovereign entities, with the word “state” being synonymous with “nation” or “country” in this context. Thus, International Law may be defined as the legal framework governing the conduct of states and other recognized entities possessing international legal personality.
The principal sources of International Law are codified in Article 38(1) of the Statute of the International Court of Justice, which enumerates the following: (a) international conventions, whether general or particular, that establish rules expressly recognized by states; (b) international custom, as evidence of a general practice accepted as law; (c) general principles of law recognized by civilized nations; (d) judicial decisions of international tribunals; and (e) the teachings of highly qualified publicists as subsidiary means for determining rules of law. These sources are regarded as the authoritative materials forming the foundation of International Law, governing the legal obligations and conduct of states, international organizations, and other entities recognized under the international legal order.
Municipal Law
Municipal Law, as defined by Black’s Law Dictionary, encompasses the ordinances and legislative enactments applicable within a city, town, or other local governmental entity. It refers to the body of law enacted by the competent legislative authority of a state, governing affairs exclusively within that jurisdiction. Municipal Law regulates interactions among individuals and between individuals and the administrative framework of government.
In a more precise and commonly used sense, Municipal Law pertains to the legislative and regulatory framework of a local governmental unit, such as a city or town, conferring upon it the authority to enact ordinances, enforce regulations, and administer public affairs. In a broader legal context, it extends to the governance and legal order of a state or nation as an autonomous entity, independent of external sovereignties. Municipal Law embodies the principle of legal sovereignty, wherein the internal legal system operates within the bounds of constitutional and statutory provisions, ensuring the orderly regulation of civil, administrative, and governmental affairs. It encompasses the statutory enactments, administrative rules, and judicial decisions governing public and private relations within the state’s territorial jurisdiction. Municipal Law, therefore, serves as the foundational legal structure ensuring governance, public order, and legal compliance within a defined territorial entity.
Relationship Between Municipal Law and International Law
International law governs the relations between sovereign States and other subjects of international law, whereas national or state law, commonly referred to as municipal law, applies within a State to individuals and corporate entities that hold rights and obligations therein. At first glance, these two legal systems may appear to be entirely separate, as each operates within its own sphere, applying distinct legal principles and being adjudicated by different courts. However, the relationship between international and municipal law is complex and has been the subject of significant legal discourse. The question of how international law interacts with municipal law is one of the most debated issues in legal theory. Initially, this relationship was largely theoretical—whether international and municipal law form part of a universal legal order or constitute separate, distinct legal systems. However, in contemporary jurisprudence, this issue has acquired profound practical significance. When a conflict arises between international law and municipal law, courts are confronted with the difficulty of determining which legal system takes precedence. Before an international tribunal, the issue concerns primacy—whether international law supersedes municipal law or vice versa. Conversely, in municipal courts, the resolution of such conflicts depends on the constitutional framework of the State, which dictates the extent to which international law is directly applicable. The challenge of integrating international law into municipal law becomes evident in cases where domestic courts must determine the applicability of international legal norms. Diplomatic immunities, for instance, which are granted under international law, would be rendered meaningless unless recognized by municipal law. Similarly, customary rules governing extradition are primarily interpreted and enforced by municipal courts. The Pinochet case underscored this principle, demonstrating that international law can confer certain rights and obligations on individuals, enforceable directly in national courts. The manner in which international law is applied in municipal courts varies by jurisdiction and is largely determined by national legal frameworks. States typically adopt either a monist or dualist approach in integrating international law. In monist systems, international law is automatically incorporated into domestic law and does not require additional legislative enactment. In contrast, dualist systems mandate that international law be explicitly transformed into municipal law through legislative action before it can have domestic effect. Moreover, international treaties often require domestic implementation through national legislation. For example, human rights treaties impose obligations on States to ensure domestic compliance. Without national legal mechanisms for enforcement, these treaties would lack practical effect. This underscores the necessity of harmonizing international and municipal legal systems to ensure the efficacy of international obligations at the domestic level. The relationship between international and municipal law has also gained prominence due to the increasing role of individuals as subjects of international law. Traditionally, international law primarily regulated State behaviour however, modern international law directly affects individuals, particularly in areas such as human rights law, international humanitarian law, and international criminal law. Municipal courts, therefore, play a critical role in enforcing international norms, especially in prosecuting crimes such as genocide, war crimes, and crimes against humanity under the principle of universal jurisdiction. Furthermore, domestic courts often serve as the first avenue for individuals seeking redress for violations of international law. For instance, under the principle of complementarity in the Rome Statute of the International Criminal Court (ICC), municipal courts retain primary jurisdiction over prosecuting international crimes, with the ICC intervening only when national legal systems fail to act. The effective operation of international law ultimately depends on the cooperation and support of national legal systems. Without municipal enforcement, many international legal norms would remain aspirational rather than legally binding. The increasing convergence between international and municipal law reflects the growing importance of integrating international obligations within domestic legal frameworks to ensure compliance and the protection of fundamental rights.
Theories and Municipal Law Monism
The Monist Theory asserts that Municipal Law and International Law form a unified legal system, rejecting the Dualist notion of their separation. Monists, such as Hans Kelsen and Alfred Lauterbach, argue that both legal frameworks operate within the same sphere of influence and regulate the same subject matter. They maintain that International Law does not require transformation into Municipal Law for domestic applicability. Instead, it is automatically integrated into the national legal order upon ratification of a treaty or through the acceptance of customary international law.
In a pure monist state, international legal norms take direct effect and can be invoked before domestic courts without additional legislative action. National judges may enforce international obligations as if they were Municipal Law, ensuring compliance with treaty provisions and customary principles. In jurisdictions that adhere strictly to Monism, courts may invalidate national laws that conflict with International Law, including constitutional provisions. This doctrine upholds the supremacy of International Law, rendering contradictory Municipal Law null and void.
Thus, Monism conceptualizes a single, hierarchical legal framework, where International Law prevails in cases of conflict. This approach aligns with the primacy of international obligations, reinforcing the notion that states are bound by their commitments under treaties, customary law, and general legal principles within the global legal order.
In Kelsen’s view, the ultimate source of the validity of all law derived from a basic rule “Grundnorm” of international law.
His theory led to the conclusion that all the rules of international law were supreme over international law that municipal law inconsistent with international law was automatically null and void and that rules of international law were directly applicable in the domestic sphere of states. International Law and Municipal Law are two phases of one and the same thing. The former, although directly addressed to the States as corporate bodies is as well applicable to individuals for States are only groups of individuals.
Dualism
The dualist doctrine, developed in the 19th and 20th centuries, asserts that International Law and Municipal Law are separate and independent legal systems, each operating within its distinct sphere. This theory maintains that International Law does not automatically become binding within a state’s domestic legal order unless it is expressly incorporated or transformed through legislative enactment. Without such transformation, International Law holds no direct legal force within a state’s jurisdiction.
Dualist scholars, notably Heinrich Trippel and Dionisio Anzilotti, emphasize the fundamental differences between these legal systems. International Law governs the relations between sovereign states and derives its authority from the collective will of states, often through treaties and customary practices. Conversely, Municipal Law regulates individuals and legal entities within a state and derives its authority from the sovereign power of the state itself. When a conflict arises between International and Municipal Law, a domestic court adhering to the dualist approach would prioritize and apply Municipal Law over International Law.
The core distinctions between these legal systems lie in their sources, subjects, and subject matter. International Law originates from agreements among states, its primary subjects are sovereign states, and its subject matter concerns interstate relations. Municipal Law, in contrast, derives from the state’s legislative authority, applies to individuals and entities within the state’s jurisdiction, and governs internal legal relationships. The doctrine contends that International Law remains a weak legal system, as it lacks a centralized enforcement mechanism and relies on state consent for implementation.
Critics argue that the dualist conception is outdated in contemporary legal discourse, as International Law increasingly regulates individuals and non-state actors through human rights law, international criminal law, and supranational legal frameworks. Moreover, the notion that state law is based solely on the “will of the state” is challenged, as state authority ultimately derives from the collective will of its people.
Delegation theory
The Theory of Delegation emerged as a critique of the Transformation Theory, asserting that domestic legal systems inherently derive their authority to apply International Law from their respective constitutional frameworks. This theory posits that the principles of International Law, particularly treaty obligations, do not require formal transformation or legislative enactment in every instance. Instead, they delegate authority to state constitutions, which regulate the manner and extent of their implementation.
According to this doctrine, the constitutional rules of international treaties confer upon each state the discretionary power to determine the applicability and execution of International Law within its municipal legal order. The delegation of rule-making authority is based on the constitutional provisions and treaty obligations adhered to by sovereign states. This theory challenges Dualism and positivist perspectives, questioning the very existence of constitutional standards of International Law and the mechanisms through which such delegation occurs.
Judicial precedents in England and the United States reinforce the principle that International Law is an integral component of Municipal Law. The United States Supreme Court has consistently upheld that ratified international agreements and customary international law, once accepted by the United States, are binding on American courts, even in cases where they conflict with domestic statutes. Furthermore, there exists a presumption that Congress does not intend to override International Law unless explicitly stated. This principle reflects the monist approach, wherein International Law is presumed to operate directly within the domestic legal order, subject to constitutional limitations.
Specific Adoption Theory
According to positivist jurisprudence, International Law cannot be directly enforced within a state’s legal framework unless it has been explicitly incorporated into Municipal Law through legislative action. This principle asserts that International Law becomes applicable domestically only when the competent legislative authority enacts implementing legislation. In essence, international legal norms do not possess automatic authority within a municipal legal system; they require legislative sanction or statutory incorporation for enforcement.
The Protection of Human Rights Act, 1993, exemplifies this principle by incorporating provisions from the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) into Indian law. This process, often termed legislative ad hoc inclusion, ensures that international obligations are enforceable domestically only when municipal legislation explicitly adopts them. Treaties and international agreements may be incorporated into national law either through statutory incorporation, where Parliament transposes treaty provisions into domestic legislation, or through automatic incorporation, where international rules are adopted without modification but still require legislative approval.
Indian legislative enactments such as the Diplomatic Relations Act, 1972 (incorporating the Vienna Convention on Diplomatic Relations, 1969), the Indian Extradition Act, 1962, and the Anti-Hijacking Act, 1982, illustrate this doctrine. In Jolly George Varghese v. The Bank of Cochin, the Supreme Court of India affirmed that international covenants do not attain binding legal status domestically unless expressly enacted into Municipal Law. Critics, however, argue that this doctrine is flawed, as customary international law norms are often applied within domestic legal systems without formal legislative adoption.
Problems associated with the application of International Law in Municipal Courts
The application of International Law within Municipal Legal Systems poses significant challenges due to the limited expertise of domestic judges and the structural constraints of municipal courts. Many domestic courts lack the necessary professional capacity to correctly interpret and apply International Law norms, given their complexity and political sensitivity. Additionally, International Law suffers from greater uncertainty, lacking an effective executive authority for enforcement, which often leads to violations due to the absence of effective sanctions. The principles of Sovereignty and Domestic Jurisdiction further restrict International Law’s intervention in state matters, as evidenced by the Soviet Union’s invocation of non-interference in response to U.S. allegations of human rights violations.
In India, the Constitution under Articles 51, 73, 245, and 246 acknowledges International Law and treaty obligations. However, India follows a Dualist Approach, requiring parliamentary incorporation for treaties to attain domestic enforceability. Courts primarily refer to Municipal Law but may consider Customary International Law in the absence of conflicting domestic provisions. In Jolly George Varghese v. Bank of Cochin (AIR 1980 SC 470) and Shri Krishna Sharma v. State of West Bengal, Indian courts reaffirmed that Municipal Law prevails over International Law unless legislative enactments explicitly integrate International Norms. This highlights the Indian Judiciary’s deference to the supremacy of domestic legislation while maintaining an interpretative openness to International Legal Principles.
LANDMARK JUDICIAL DECISIONS
Barcelona Traction case
In the Barcelona Traction Case, Belgium instituted proceedings against Spain before the International Court of Justice (ICJ), asserting claims on behalf of Belgian shareholders in a Canadian-registered company. Belgium alleged that Spain had violated International Law, causing harm to both the company and its shareholders. However, the ICJ dismissed the claim, reaffirming that diplomatic protection is granted to the State of incorporation rather than to the State of nationality of shareholders. The Court ruled in favor of Spain, holding that Belgium lacked locus standi, as the dispute primarily concerned a Canadian corporate entity and not Belgian nationals directly.
Chung Chi Cheung V. King
Chung worked as a cabin boy on a Chinese ship. He shot and murdered the captain while the vessel was in Hong Kong Territorial Waters. & still, another individual, C, was dutifully enlisted. The dispute was whether the Hong Kong Court (a British Colony at the time) had jurisdiction to hear the case. The Privy Council ruled that the Court was competent to hear the case. The guilty verdict was upheld.
Apparel Export Promotion Council V. A.K. Chopra
In Apparel Export Promotion Council v. A.K. Chopra, the Supreme Court of India upheld the dismissal of a senior officer for sexually harassing a female subordinate, applying the Vishakha guidelines on workplace harassment. The Court emphasized that in cases involving human rights violations, judicial interpretation must consider international conventions and treaties, provided they do not conflict with municipal law. The ruling reinforced the judiciary’s duty to harmonize domestic law with international legal standards, ensuring that fundamental rights, particularly those related to gender equality and workplace dignity, are safeguarded in accordance with global human rights norms.
State of West Bengal v Kesoram Industries Ltd. & others
In this decision, the Supreme Court’s Constitutional Bench concluded that the idea of Dualism, not Monism, applies in India; however, if the local legislation does not limit the scope of the statute, the Supreme Court can interpret it even though India is not a signatory to the treaty.
West Rand Gold Mining Co. V. King
In West Rand Gold Mining Co. v. King, a South African company engaged in gold mining sought compensation after government officials confiscated its gold, as mandated by law. Following the British conquest of South Africa, the gold was taken to England, and the Company sued the British government for its return or compensation. However, the Crown issued a declaration stating it would not uphold the South African government’s commitments. The Court ruled that the Crown Declaration, as Municipal Law, was binding on Municipal Courts, thereby establishing that domestic law prevailed over international claims in this matter.
Conclusion
The relationship between international law and municipal law remains a complex and evolving area of legal study. While international law seeks to regulate relations between states, organizations, and individuals on a global scale, municipal law governs internal affairs within a state’s jurisdiction. The extent to which international law is incorporated into domestic legal systems depends on the legal framework of each state, with some adopting a monist approach where international law is automatically applicable, and others following a dualist approach that requires legislative enactment.
Theories such as monism, dualism, delegation, and specific adoption highlight different perspectives on how these legal systems interact. Judicial decisions from various jurisdictions further illustrate the challenges in harmonizing international obligations with domestic legal principles. Cases like Barcelona Traction and Chung Chi Cheung establish key precedents in applying international law, while decisions such as State of West Bengal v. Kesoram Industries reaffirm the primacy of municipal law in certain contexts.
Ultimately, the dynamic interplay between international and municipal law underscores the need for greater judicial expertise, legislative clarity, and policy consistency. As globalization intensifies, states must balance sovereignty with international commitments, ensuring that domestic legal frameworks evolve to uphold global legal standards effectively.
Reference: –
1. Municipal Law and International Law, by Radhika Saxena available at www.indianjudiciarynotes.com/muni
2. Find law blog “What is Municipal Law ? available at https://www.findlaw.com/hirealawyer/choosing-the-
3. Relationship between international law and municipal law Flashcards Preview, available at https://www.brainscape.com/flashcards
4. Brierly’s. definition of International Law/ Oppenheim, International Law
5. Westlake, international law part, 1990
6. Municipal Law at Legal Dictionary | Law.com
7. Provisions in regard to the judiciary in India are contained in Part V (The Union) under Chapter IV titled The Union Judiciary and Part VI (The States) under Chapter VI.
8. Mohamed Bedjaoui. International Law/.
9. International journal for legal research and analysis available at www.ijlra.com
