Submitted by Rohini Kamble
The relation amongst the citizen within the state as well as the relationship amongst different state is governed by the Municipal or the State law, whereas, the International Law deals with the laws governing the relationship of the state interest between countries. It is necessary to have harmonious functioning of these two laws. They must not conflict between each other.
There are 5 theories regarding the relationship between International Law and State law
(3) Specific Adoption Theory
(4) Transformation theory
(5) Delegation Theory.
Monism and Dualism are two main theories and others have been derived from them.
The supporters of this theory are of the view that law is unified field of knowledge no matter whether it applies for individuals or other entities. Therefore, International Law and State law are two branches of unified knowledge of law, they are intimately connected to each other. This theory gives more emphasis on the specific analysis of the internal structure of the law. According to the Monist belief, " International obligations and the Municipal rules are facts of same phenomenon the two deriving, ultimately from one basic norm to the unitary order comprised by the conception of the law." According to this theory the individual is at the roof of the law. It says that all laws are made for the individual. However this theory is not based on the actual practice of the state.
This theory says that International Law and State Law are two separate laws. According to Triepel who is one of the chief exponents of the theory, International Law and State Law are different because their subjects and origins are different. In his view individual is the subject of State Law whereas the State is the subject of International Law. Even the sources of these laws are different, the source of State Law is the legislature or sovereign authority of the state whereas the source if International Law lies in the agreements of the states i.e. treaties. Besides the origin of the State Law is the will of the state. The state is nothing but the will of the people who compose it. Certain fundamental principals of International Law are binding upon the state even against their will. According to Anzilotti, the fundamental principle of the International Law, is pacta sunt servanda (i.e. agreements between the state are to be respected in good faith) but this principle fails to explain the binding force of the customary rules of the International Law.
WHETHER MONISM OR DUALISM IS THE CORRECT THEORY.
It has been observed that no theory can include all the elements in it, it cannot be complete in itself .The practice of state sometimes indicates that there is the primacy of International Law. Sometimes there is primacy of State Law and sometimes there is mixture of the different legal systems. The permanent court of International Justice held in Greco, Bulgarian Communities case, "It is generally acceptable principle of International Law that in relation, between powers who are contracting parties of treaty, the provisions of municipal law cannot prevail in over the treaty." Municipal Law is given primacy in cases where the courts find that the conflict between International Law & Municipal Law is of such nature that it cannot be avoided. Gould observed that, "as the matters stand each situation must be analysed by itself including the tribunal before which the litigation, if any, is brought in order to settle the question of which two conflicting rules of the different orders prevails in the concrete dispute”.
(3) SPECIFIC ADOPTION THEORY
According to this theory International Law can be applied in the field of State Law, when it has been permitted or adopted specifically. This theory is based on the positivist theory. It has also been criticized that there are several principles of International Law which are applied in the field State Law without specific adoption. This view is followed in respect of International treaties. It has held the S.C of India in Jolly George V. The Bank of Cochin; while considering the International conventions of Civil and Political right. "The positive commitment of the State parties ignites the legislative action at home but does not automatically make the covenant enforceable part of the corpus juries of India." As regards the specific adoption of International treaties by Indian Parliament the Anti Apartheist (UN Convention) Act , 1984, The anti hijacking Act, 1982,Supression of Unlawful Act against the safety of the civil Aviation Act, 1982 and International Monetary Fund and Bank (Amendment)Act, 1982, Deserves a special mention. It is to be noted that there are many principles of International Law (esp. Customary Rules) which are applied in the field of Municipal Law without any specific adoption.
(4) TRANSFORMATION THEORY
This theory is based on the consent theory which has also been criticised. According to the this theory the rules of International Law must be under some transformation and then it can be applied in the field of Municipal Law. This theory has also been criticised as there many principle of International Law which, without undergoing any process of transformation are applied in the field of Municipal Law.
(5) DELEGATION THEORY
The Delegation Theory has been put forward by the critics of transformation theory. As the theory is merely based on presumption, it has been severely criticized. According to this theory the constitutional rules of International Law permits each state to determine as to how international treaties will become applicable in the field of State Law.
Submitted by Rohini Kamble