Updated: Aug 19, 2020
Two aspects are to be noted in the relationship between Municipal Law & International Law. One is the theoretical question whether both laws are part of a Universal legal order, or, are two different systems. The other is the conflict between them in the Municipal courts as to the primacy of Municipal Law over International Law, or vice versa.
i i ) Two Schools:
The two schools are the Dualistic & the Monistic schools: Monistic School : According to Anzilotti and Triepel, International Law & Municipal Law are two separate & distinct systems of law-one is the antipode of the other. The reasons are :
Sources : Municipal law has Acts of Parliament arid local custom as sources of law, whereas International law has treaties and International customs as primary sources. Thus they are different.
Secondly : Individuals are subjects in Municipal law, whereas the States are subjects in International law.
Thirdly : Under Municipal law the State has its sway over the individuals, whereas International law is between or among Sovereign States.
Dualistic School : Dualists school has been opposed by the Monistic school (also called Vienna School) which holds thefollowing views : (founder Kelsen).
Firstly : Ultimately it is the conduct of the individual that is regulated in both the systems of Municipal 86 International law.
Secondly : Law is a command on the subjects (Individuals or States) independently of their will.
Thirdly : Both the systems are the manifestations of a single, conception of law. Two .branches of the same tree. From the above schools it is evident that International law
and Municipal law are separate according to the Dualists but one and the same according to the Monists.
iii) Practice of States : In U.K.: Primary Rule : International Customs : According to Blackstone, Customary International Law is part of the law of the land. The British
Courts follow this rule but subject to two conditions ;
1. That such a rule should not be against any Brit ish Statut e.
2. That once the Court decides, it is followed thereafter. The Blackstone's Theory was confirmed by judicial determinations (Dolder V. Hunting field, Nevello V. Toogood etc.).
Leading cases : 1.. R.V. Keyn (Franconia Case) 1876 Franconia, a German ship, collided with a British vessel within the British Maritime Belt. The British Vessel sank and one
person -died. The Briti sh Court convict ed the mast er of the German ship for manslaughter. Question arose about thejurisdiction of the Court as the incident had happened within the
British territorial waters. The House of Lords, held that the EnglishCourt wa, bound by Municipal Law and Municipal Law had not provided for the Jurisdiction hence no jurisdiction.
This was neutralized by the Parliament which passed the Territorial Jurisdiction Act 1878 by extending the jurisdiction.
2. West Rand Gold Mining Co .V. King 1905. This was a Company working a gold mine in South Africa.The Govt. officials seized gold belonging to the Company &according to law they were to pay compensation or return the same.South Africa was defeat ed by the Brit i sh, and, the gol d wasbrought to Engl and. Thereupon, the Company sued theEnglishGovt. for return of the gold or for compensation. The Crown made a Declaration which stated that the British Govt. as a successor would not respect the commitments of theSouth African Govt. The Court held that the Company was not entitled to the gold or for compensation, as the Crown Declaration was MunicipalLaw. binding on Municipal Courts Hence, municipal Law prevailed.
3) Chung Chi Cheung V. King (Privy Council). C was a cabin boy on board a Chinese vessel. ' When theVessel was in Hongkong Territorial Waters, he shot & killed the Captain. & another person. C was duly committed. But. the question was whether the Court of Hongkong (a British ' Colony then) had jurisdiction to try the case. The Privy Council held that the Court had jurisdiction. The conviction was affirmed. Rules of Interpretation . The rules emerge from British practice . * A rule of construction that the Parliament did not intend-to deviate from international law. This is a presumption.
ii) A rule of evidence according to which courts take notice of International law.
b) Treaties : Negotiation, signature ratification are matters, belonging to the prerogatives of the Crown. But legislation is necessary, if treaties are :-
1. Affecting the rights of subjects (citizens).
2. Modifying a statute. *
3. Vesting additional powers on the Crown.
4. Imposing financial burden.Legislation is also necessary, if there is a provision for cession of the territory. Hence in case of treaties, incorporation is necessary, otherwise, Muncipal law will prevail.
Practice of States : In U.S. A.
i) Internat ional Custom : The procedure is the same as in U. K.
ii) International Treaties : The practice Is different - a s the U.S. Constitution in Art. 6(2) provides that treaties are The Supreme – Law of the land'. There is a clear distinction between self executing and non-self executing treaties. Self executing treaties operate
without legislation. In case of non- self- executing treaties. they will he operative only after legislation, INDIA : Art. 51, of Directive Principles of State policy, provides or respect for International Law'. This provision is a reference to the State Policy only. Broadly speaking the practice of U.K. is followed in India, (Beruberi Union Case).