Impact of International laws on Municipal Laws


Abstract

John F. Kennedy had rightly said, “We prefer world law in the age of self-determination to world war in the age of mass extermination. “

There are many contrasts between the working of Municipal laws and International law and through this project I would like to bring out the impact International law has on the laws governing individual nation states. Firstly, this project will attempt to bring out the major theories propounded in relation to International laws and municipal law. Secondly, it will then proceed to understand the Role of Municipal rules in International Law. Thirdly, the research paper will then tackle the Role of International law before Municipal Law. Finally, the project will highlight the importance of treaties and its effect on the municipal laws. 

 Introduction

Since the dawn of human civilization law has always played a central role in the development of mankind. The idea that order is necessary and chaos inimical to a just and stable existence[1], has always been the central idea of law. Law or the law does not consist of the total number of laws in force. The constituent elements of which the law is made up are not laws, but rules of law or legal principles[2].

Law is territorial in nature.[3] It is because no state in times of peace allows other state or states to prescribe for and exercise powers over persons, events or things within its justification[4]. Thus the Austinian theory of law which says that every law is a direct or circuitous command of the sovereign in the character of a political superior is the basis of what we call Municipal Laws. Thus Municipal law is the law applied within a State. It is also called as ‘lex proprium civitatis’. The Roman called it the jus civile, the corpus juris civilis. It is the law of civitas that is the State.  But Municipal laws proved inadequate in providing a relevant background for an expanding and developing nation. This need was served by the creation and progressive augmentation of jus gentium. This provided simplified rules to govern the relations between foreigners and between foreigners and citizens. Thus this gave rise to the system of what we know as International Law.

International Law consists of those rules which govern sovereign states in their relations and conduct towards each other[5]. The principal subjects of International law are nation states and not individual citizens.[6] International law itself is divided into conflict of laws( or private international law as it is sometimes called) and public international law(usually just termed international law).[7]

Chapter 1: Major Theories Propounded in relation to  International laws and Municipal law

There are has been many theories propounded in relation to International Law and Municipal laws. The most notable of them all will include the Positivist theory and Monist theory. We will be looking at these theories in detail in the following pages. 

Positivism stresses the overwhelming importance of the state and tends to regard International law as founded upon the consent of states[8]. It is actual practice, illustrated by customs and by treaty[9], which formulates the role of International Law, and not formalistic structures, theoretical deductions or moral stipulations. Accordingly when positivists such as Triepel and Strupp consider the relationship of International Law to Municipal law, they do so upon the basis of the supremacy of the state and the existence of wide differences between the two functioning orders. This theory is known as dualism and stresses that the rules of the systems of International Law and Municipal law exist separately and cannot purport to have an effect on, or overrule, the other[10]

This is because of the fundamentally different nature of inter-state and intra-state relations and the different legal structures employed on the one hand by the state and on the other hand as between states. Where municipal legislation permits the exercise of International law rules, this is of no sufferance as it were and is an example of the supreme authority of the state within its own domestic jurisdiction, rather than of any influence maintained by International Law within the internal sphere[11]

Those writers who disagree with this theory and who adopt the Monist Theory tend to fall into two distinct categories: Those who, like Lauterpacht, uphold a strong ethical position with a deep concern for human rights and, others, like Kelsen who, maintain a monist position on formalistic logical grounds. The monists are united in accepting a unitary view of law as a whole and are opposed to the strict division posited by the positivists[12].

The ‘naturalist’ strand represented in England by Lauterpacht’s works sees the primary function of all law as concerned with the well being of individuals, and advocates the supremacy of International law as the best method available of attaining this. It is an approach characterized by absolute independence of states, and illuminated by faith in the capacity of the rules of International law to imbue the International law to imbue the international order with a sense of moral purpose and justice founded upon the respect for human rights and the welfare of individuals[13].

The method by which Kelsen elucidates his theory of Monism is markedly different and utilizes the philosophy of Kant[14] as its basis. Law is regarded as constituting an order which lays down patterns of behavior that ought to be followed, coupled with provision for sanctions which are employed once an illegal act or course of conduct has occurred or been embarked upon[15]. Since the definition appertains within both the internal sphere and the international sphere, a logical unity is forged[16] and because states owe their legal relationship to one another to the rules of International law, such as the one positing equality, since states cannot be equal before the law without a rule to that effect, it follows that International law is superior to or more basic than municipal law.[17]

A third approach, being somewhat a modification of the dualist position and formulated by Fitzmaurice and Rousseau amongst others, attempts to establish a recognized theoretical framework tied to reality. This approach begins by denying that any common field of operation exists as between International law and Municipal law by which one system is superior or inferior to the other.[18] Each order is supreme in its own sphere, much as French law and English law are in France and England. Just as one cannot talk in terms of the supremacy of French law over English law, but only of two distinct legal systems each operating within its own field, so it is possible to treat International law and Municipal law in the same way. They are both the legal element contained within the domestic and international systems respectively, and they exist within different juridical orders[19].

 Chapter 2: Role of Municipal Rules In International Law                                                                                                    

The general rule with regard to the position of municipal law within the International sphere is that a state which has broken a stipulation of international law cannot justify itself by referring to a breach of an international obligation to argue that the state acted in such a manner because it was following the dictates of its own municipal laws[20]. The reasons for this inability to put forward internal rules as an excuse to evade international responsibility are obvious. Any other situation would permit international law to be evaded by the simple method of domestic legislation.[21]

Accordingly, state practice and decided cases have established this provision and thereby prevented countries involved in International litigation from pleading municipal law as a method of circumventing International law[22]. Article 27 of the . lays down that in so far as treaties are concerned, a party may not to be bound invoke the provisions of its internal  law as justification for its failure to carry out an international agreement, while Article 46(1) provides that a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent[23]. The international court considered this provision in Cameroon v Nigeria in the context of Nigeria’s argument that the Moroua Declaration of 1975 signed by the two heads of state was not valid as it had not been ratified.[24] The court also took the view that ‘there is no general legal obligation for states to keep themselves informed of legislative and constitutional developments in other states which are or may become important for the International relations of these states’.[25] The International Court, in the Applicability of the obligation to Arbitrate case,[26]  has underlined ‘the fundamental principle of International law that international law prevails over domestic law’, while Judge Shahabuddeen emphasized in the Lockerbie case[27] that inability under domestic law to act was no defense to non compliance with an International obligation.

However such expressions of the supremacy of International law over municipal law in International tribunals do not mean that the provisions of domestic legislation are either irrelevant or unnecessary.  On the contrary, the role of internal legal rules is vital to the workings of the International legal machine[28]. One of the ways to understand this is by examining municipal laws[29]. A country will thus express its opinion on such vital international matters as the extent of its territorial sea, or the jurisdiction it claims or the conditions for the acquisition of nationality through the medium of its domestic law-feelmaking .Thus, it is quite often that in the course of deciding a case before it, an International court will feel the necessity to make a study of relevant pieces of municipal legislation.

Chapter 3: Role of International law before Municipal Law

The problem of International law within the municipal law system is, however, rather more complicated than the position discussed above, and there have been a number of different approaches to it. States are, of course, under a general obligation to act in conformity with the rules of International law and will bear responsibility for breaches of it, whether committed by the legislative, executive or judicial organs.[30]

In this chapter we will look at the approach adopted by the Common law system most notably the doctrine of Incorporation will be discussed.

The common law system has its roots in the UK’s legal system and it will be unjust to not discuss UK’s position concerning International law’s effect on its Municipal laws.

It is part of the public policy of the UK that the courts should in principle give effect to clearly established rules of International law. Various theories have been put forward to explain the applicability of International law rules within the jurisdiction. One expression of the positivist- individualist position has been the doctrine of transformation. This is based upon the perception of two quite distinct systems of law, operating separately, and maintains that before any rule or principle of International law can have any effect within the domestic jurisdiction, it must be expressly and specifically ‘transformed’ into municipal law by the use of appropriate constitutional machinery, such as an Act of Parliament.[31]

Another approach known as the doctrine of incorporation holds that international law is part of the municipal law automatically without the necessity for the interposition of a constitutional ratification procedure[32]. This doctrine refers to customary international law and different rules apply to treaties.

Customary International Law

It is in this sphere that the doctrine of incorporation has become the main British approach. It is an old established theory dating back to the eighteenth century, owing its prominence at that stage to the considerable discussion then taking place as to the precise extent of diplomatic immunity. In the case of Buvot v. Barbuit[33], Lord Talbot declared unambiguously that ‘the law of nations in its full extent was part of the law of England’, so that a Prussian commercial agent could not be rendered liable for failing to perform a decree. This was followed twenty seven years later by Triquet v. Bath,[34] where Lord Mansfield, discussing the issue as to whether a domestic servant of the Bavarian Minister to Britain could claim diplomatic immunity, upheld the earlier case and specifically referred to Talbot’s statement. This acceptance of customary international law rules as part and parcel of the common law of England, so vigorously stated in a series of Eighteenth century cases, was subject to the priority granted to acts of parliament and tempered by the Principle of Stare Decisis or precedent, maintained by the British courts and ensuring that the judgments of the higher court are binding upon the lower courts of the hierarchical system. Accordingly, a rule of International law would not be implemented if it ran counter to a statute or decision by a higher court.[35]

The basic approach adopted by the majority of common law states is clear, complications have arisen where the country in question has a written constitution. India, whose constitution refers only in the vaguest of terms to the provisions of International law is a perfect example[36]. Art. 253 of the Constitution of India states: “Notwithstanding anything in the foregoing provisions of this chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or body.”

Let’s take a look at a very important case in question, Vishaka v State of Rajasthan[37],

A group of social activists and non-governmental organizations brought as a class action a petition under Art. 32 of the Indian Constitution referring to the Supreme Court’s powers under that provision to issue directions for the enforcement of certain fundamental rights incorporated in the Constitution that were being violated by alleged practices of sexual harassment of women in the workplace in India. Article 32 of the Constitution empowered the Supreme Court to issue guidelines for the enforcement of constitutionally guaranteed rights.

Since domestic law did not address the issue and did not formulate effective measures to prevent sexual harassment of working women at the workplace, the Court decided to formulate general principles in order to define the concept of sexual harassment and to ensure its eradication. To do so, the Court referred to the Convention on the Elimination of All Forms of Discrimination against Women and on the statements of the United Nation Committee on the Elimination of Discrimination against Women (the international body responsible for supervising the application of this Convention).

In order to explain its reliance on international law, the Court stated the following:

“Gender equality includes protection from sexual harassment and the right to work with dignity, which is a universally recognized basic human right. The common minimum requirement of this right has received global acceptance. The international conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose.”

(…) “The government of India ratified the above Resolution on 25 June 1993 with some reservations which are not material in the present context. At the Fourth World Conference on Women in Beijing, the government of India also made an official commitment, inter alia, to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector; to set up a Commission for Women’s Rights to act as a public defender of women’s human rights; and to institutionalize a national level mechanism to monitor the implementation of the Platform For Action. We have therefore no hesitation in placing reliance on the above for the purpose of construing the nature and ambit of the constitutional guarantee of gender equality in our Constitution.”

The Court added:

“It is now accepted rule of judicial construction that regard must be had to international Conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law.”

The Court then referred to Australian decisions and concluded:

“There is no reason why these international Conventions and norms cannot therefore be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity.”

Once justified the reference to international instruments, the Supreme Court of India closely relied on the General Recommendation of the United Nations Committee on the Elimination of Discrimination against Women in order to define the actions and situations that shall be qualified as sexual harassment. Besides, the Supreme Court followed the guidelines issued by the United Nations Committee when elaborating the measures to be taken in order to protect women against harassment and the judicial remedies to be granted to sexual harassments victims.

Chapter 4: Treaties and Conventions

As far as treaties as treaties are concerned, different rules apply as to their application within the domestic jurisdiction for very good historical and political reasons. While customary law develops through the evolution of state practice, international conventions are in the form of contracts binding upon the signatories.[38] For a custom to emerge it is usual, though not always necessary, for several states to act in a certain manner believing it to be in cohjtgnformity with the law. Therefore, in normal circumstances the influence of one particular state is not usually decisive[39]. In the case of treaties, the states involved may create new law that would be binding upon them irrespective of previous practice or contemporary practice[40]. In other words, the influence of the executive is generally of greater impact where treaty law is concerned than is the case with customary law.

It follows from this that were treaties to be rendered applicable directly within the state without any intermediate stage after signature and ratification and before domestic operation, the executive would be able to legislate without legislature. Because of this, any incorporation theory approach to treaty law has been rejected.[41]

One of the principal cases in English law illustrating this situation is the case of the Parlement Belge.[42] It involved a collision between this ship and a British tug, and the claim for damages brought by the latter vessel before the Probate, Divorce and Admiralty division of the High Court. The Parlement Belge belonged to the King of Belgians and was used as a cargo boat. During the case, the Attorney General intervened to state that the court had no jurisdiction over the vessel as it was the property of the Belgian Monarch, and that further, by a political agreement of 1876 between Britain and Belgium, the same immunity from foreign legal process as applied to warships should also apply to this packet boat. In discussing the case, the court concluded that only public ships of war were entitled to such immunity and that such immunity could not be extended to other categories by a treaty without parliamentary consent. Indeed, it was stated that this would be ‘a use of the treaty-making prerogative of the Crown…without precedent, and in principle contrary to the law of the Constitution.[43]

The interpretation of treaties not incorporated by statute into municipal law, and the decision as to whether they have been complied with, are matters exclusively for the Sovereign as ‘the court must speak with the same voice as the executive’[44]. An exception is where reference to a treaty is needed in order to explain the relevant factual background,[45] for example where the terms of a treaty are incorporated into a contract.[46]

Where the legislation in question refers expressly to a relevant but unincorporated treaty, it is permissible to utilize the latter in order to constrain any discretion provided for in the former.[47] Further, it has been argued that ratification of an international treaty (where no incorporation has taken place) may give rise to legitimate expectations that the executive, in the absence of statutory or executive indications to the contrary, will act in conformity with the treaty.[48]

However treaties relating to the conduct of war, cession of territory and the imposition of charges on the public purse[49] do not need an intervening act of legislation before they can be made binding upon the citizens of the country.[50] A similar situation exists also with regard to relatively unimportant administrative agreements which do not require ratification, providing of course they do not purport to alter municipal law. In certain cases, Parliament will give its approval generically in advance for the conclusion of treaties in certain fields within specified limits, subject to the terms negotiated for particular treaties being promulgated by statutory instrument(secondary legislation).[51]

In conclusion it may stated that parliamentary legislation will be required where a treaty for its application in the common law system requires a modification of, or addition to, existing common law or statute, affects private rights, creates financial obligations for the country or increases the powers of the Sovereign.[52] 

Conclusion

International law since the middle of the last century has been developing in many directions, as the complexities of life in the modern era have multiplied. For, as already emphasized, municipal law reflects the conditions and cultural traditions of a particular country within which it operates.  The country evolves a certain specific set of values – social, economic and political and this stamps its mark on the legal framework which orders life in the environment. International law is also a product of its environment. It has developed in accordance with the prevailing notions of international relations and to survive it must be in harmony with the realities of the age.

Nevertheless, there is continuing tension between those rules already established and the constantly evolving forces that seek changes within the system. One of the major problems of municipal law is to determine when and how to incorporate standards of International law into the already existing framework, so that, on the one hand, the law remains relevant and, on the other, the system itself is not too vigorously disrupted.

The growth of positivism in the nineteenth century has had the effect of focusing the concerns of International law upon sovereign states. They alone were the ‘subjects’ of International law  and were to be contrasted with the status of non-independent states and individuals as ‘objects’ of International law. They alone created the law and restrictions upon their independence could not be presumed. But the gradual sophistication of positivist doctrine, combined with the advent of new approaches to the whole system of international relations, has broken down this exclusive emphasis and extended the roles played by non-state entities, such as individuals, multinational firms and international institutions.

Thus in conclusion, reality circumscribes the concept of sovereignty in operation and increases the necessity for worldwide co-ordination of matters as different as the policies adopted to combat economic problems, environmental dangers and terrorist threats.

 


[1] See Malcom N. Shaw, International Law, Fifth Edition, Cambridge University Press, Cambridge,2003 pp.1

[2] See P J Fritzgerald, Salmond on Jurisprudence, Twelfth Edition, Univrsal Law Publishing Co.Pvt.Ltd., 2004,pp 10

[3] Ibid at pp.11.

[4] Ibid at pp 12.

[5] Ibid at pp. 14

[6] Supra Note 1 at pp.1

[7] See J.Bentham, Introduction to the principles of Morals and legislation, London, 1780

[8] Supra Note 1 at pp 121.

[9] See J.H.Jackson, Status of Treaties in domestic legal Systems : A Political Analysis, AJIL Pvt. Ltd. 1992, pp.310 

[10] Supra Note 1 at pp. 122

[11] See R.W.Jennings and A.D.Watts, Oppenheim’s International law,9th Edition, Sweet Maxwell and Co., 1992,  pp. 53

[12]See G.Fitzmaurice, The General Principles of International Law Considered from the standpoint of the Rule of Law, Cambridge University Press, Cambridge, 1992, pp. 5

[13] See generally, Lauterpacht, International Law, London, 1950.

[14] Kant’s philosophy: According to which all of man’s knowledge consists only of his own conceptions..

[15]  See Kelsen, General theory of Law and state, Cambridge University Press, Cambridge, 1945, pp.363 

[16] Supra Note 1 at pp. 122

[17] See, Kelsen, Principles of International Law, Cambridge University Press, Cambridge, 1952, pp. 557

[18] Supra Note 12 at pp. 53; See also C.Rosseau, Droit International Public, Paris Univ. Press, Paris, 1979, pp.4-16.

[19]  Ibid at pp. 30

[20] Supra Note 1 at pp. 124

[21] See e.g. C.W.Jenks, The Prospects of International Adjudication, London Publishing House, London, 1964, Ch. 9.

[22]  Supra Note 1 at pp. 124

[23] Note also Article 13 of the Draft Declaration on the Rights and duties of states, 1949, which provides that every state ‘has the duty to carry out in good faith its obligations arising from treaties and other sources of International law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty’, Yearbook of the ILC, 1949. pp. 286, 289.

[24]ICJ Reports, 2002, para.265

[25] Ibid., para.266

[26] ICJ Reports, 1988,pp.12, 34; 82 ILR, pp.225,252

[27] ICJ Reports, 1992, pp.3, 32; 94 ILR, pp. 478, 515; ee also Westland Helicopters Ltd v AOI, 80 ILR, pp.595, 616.

[28] Supra Note 1 at pp. 126.

[29]See e.g. the Anglo- Iranian Oil Co. case,  ICJ Reports, 1952, pp.93; 19 ILR, pp.507.

[30] Supra Note 1 at pp. 128; See also e.g. the Exchange of Greek and Turkish Populations case, PCIJ, Series B, No.10, pp.20.

[31] Supra Note 1 at pp. 129.

[32] Ibid at pp. 129.

[33] (1764) 3 Burr. 1478.

[34] (1737) Cases t. Talbot 281.

[35] See Trendtex Trading Corporation v. Central Bank of Nigeria[1977] 2 WLR 356; 64 IL, pp. 111, 128.

[36] See e.g. D.D. Basu, Commentaries on the Constitution of India, New Delhi, 1962, Vol. II.

[37] AIR 1997 SC 3011

[38] Supra Note 1 at pp.135

[39] Ibid at pp. 135

[40] See Generally A.D. Mcnair, The law of treaties, Oxford University Presss, Oxford, 1961, pp.81-97.

[41] Ibid at pp. 95                                                                                                            

[42] (1879) 4 PD 129.

[43] Ibid., pp.154.

[44] Lonrho Exports v. ECGD[1996] 4 All ER 673, 688; 108 ILR, pp.596, 613.

[45] Lord Oliver in Maclaine Watson v. Department of Trade and Industry emphasized that the conclusion of an international treaty is a question of fact, thus a treaty may be referred to as part of the factual background against which a particular issue arises, [1989] 3 All ER 523, 545; 81 ILR, pp.671, 702.

[46] Supra Note 42.

[47]  See e.g. R v. Secretary of State, on the application of the Channel Tunnel Group 119 ILR, pp. 398, 407-8.

[48] See Lord Woolf MR in Ex Parte Ahmed and Patel[1998] INLR 570, 584, relying upon the approach of the High court of Australia in Minister of Immigration v. Teoh, (1995) 128 ALR 353, as to which Hobhouse LJ stated that where the secretary of state had adopted a specific policy, it was not possible to derive a legitimate expectation from the treaty going beyond the scope of policy: at 592.

[49] Supra Note 1 at pp.138.

[50] Supra Note 38 at pp. 89.

[51] Supra Note 1 at pp.138.

[52] See, Sinclair and Dickson, National Treaty Law, Sweet Maxwell and Co., London,  1989, p.230.


About Tamojit Chatterjee

HIDAYATULLAH NATIONAL LAW UNIVERSITY RAIPUR, C.G.

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