Introduction

Meaning of International Law:

International law is the set of rules generally regarded and accepted as binding
in relations between states and between nations. It serves as a framework for
the practice of stable and organized international relations. To qualify as a
subject under the traditional definition of international law, a state had to be
sovereign: It needed a territory, a population, a government, and the ability to
engage in diplomatic or foreign relations. States within the United States,
provinces, and cantons were not considered subjects of international law,
because they lacked the legal authority to engage in foreign relations. In
addition, individuals did not fall within the definition of subjects that enjoyed
rights and obligations under international law. A more contemporary definition
expands the traditional notions of international law to confer rights and
obligations on intergovernmental international organizations and even on
individuals.

Meaning of Municipal Law:

Municipal law is the national, domestic, or internal law of a sovereign state
defined in opposition to international law. Municipal law includes not only law
at the national level, but law at the state, provincial, territorial, regional or local
levels. While, as far as the law of the state is concerned, these may be distinct
categories of law, international law is largely uninterested in this distinction and
treats them all as one. Similarly, international law makes no distinction between
the ordinary law of the state and its constitutional law. Article 27 of the Vienna
Convention on the Law of Treaties provides that, where a treaty conflicts with a
state's municipal law (including the state's constitution), the state is still obliged
to meet its obligations under the treaty. The only exception to this rule is
provided by Article46 of the Vienna Convention, where a state's expression of
consent to be bound by a treaty was a manifest violation of a "rule of its internal
law of fundamental importance.
Relationship between
Municipal and
International law
Legislature and court systems are different on the international and municipal
levels. Where the municipal level uses a legislature to help enforce and test the
laws, the international court system relies on a series of treaties without a
legislature which, in essence, makes all countries equal.
Enforcement is a major difference between municipal and international law.
The municipal courts have a law enforcement arm which helps require those it
determines to follow the rules, and if they do not they are required to attend
court. The international court system has no enforcement and must rely on the
cooperation of other countries for enforcement.
There is a divergence of opinion on the question as to whether International
Law and Municipal Law on the various national laws can be said to form a unity
being manifestations of a single conception of law or whether International Law
constitutes an independent system of law essentially different from the
Municipal Law. The former theory is called monistic and the latter dualistic.

Monistic Theory:
Monists assume that the internal and international legal systems form a unity.
Both national legal rules and international rules that a state has accepted, for
example by way of a treaty, determine whether actions are legal or illegal. In
most monist states, a distinction between international law in the form of
treaties, and other international law, e.g. jus cogens is made. International law
does not need to be translated into national law. The act of ratifying the
international law immediately incorporates the law into national law.
International law can be directly applied by a national judge, and can be directly
invoked by citizens, just as if it were national law. A judge can declare a national
rule invalid if it contradicts international rules because, in some states, the latter
have priority. In other states, like in Germany, treaties have the same effect as
legislation, and by the principle of lex posterior, only take precedence over
national legislation enacted prior to their ratification. In its most pure form,
monism dictates that national law that contradicts international law is null and
void, even if it predates international law, and even if it is the constitution. It
maintains that the subject of the two systems of law namely, International Law
and Municipal Law are essentially one in as much as the former regulates the
conduct of States, while the latter of individuals. According to this view law is
essentially a command binding upon the subjects of the law independent of
their will which is one case is the States and in the other individuals. According
to it 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.

Dualistic theory:
Dualists emphasize the difference between national and international law, and
require the translation of the latter into the former. Without this translation,
international law does not exist as law. International law has to be national law
as well, or it is no law at all. If a state accepts a treaty but does not adapt its
national law in order to conform to the treaty or does not create a national law
explicitly incorporating the treaty, then it violates international law. But one
cannot claim that the treaty has become part of national law. Citizens cannot
rely on it and judges cannot apply it. National laws that contradict it remain in
force. According to dualists, national judges never apply international law, only
international law that has been translated into national law. According to the
dualist view the systems of International Law and Municipal Law are separate
and self contained to the extent to which rules of the one are not expressly or
tacitly received into the other system. In the first place they differ as regards
their sources. The sources of Municipal Law are customs grown up within the
boundaries of the State concerned and statutes enacted therein while the
sources of International Law are customs grown up within the Family of Nations
and law making treaties concluded by its members. In the second place
Municipal Laws regulates relations between the individuals under the sway of a
State or between the individuals and the State while International Law regulates
relations between the member States of the Family of Nations. Lastly there is a
difference with regard to the substance of the law in as much as Municipal Law
is a law of the sovereign over individuals while International Law is a law
between sovereign State which is arrived at an agreement among them. The
latter is therefore a weak law.
In India, SC has held in several cases such as Vishakha vs State of Rajasthan1,
Randhir vs Union of India2, Unnikrishnan vs State of Karnataka3 that domestic
laws of India, including the constitution are not to be read as derogatory to
International law. An effort must be made to read the domestic law as being in
harmony with the international law in case of any ambiguity. At the same time,
the constitution is still the supreme law of the land and in case of any directly
conflict the constitution will prevail.

1
AIR 1997 SC 3011
2
1982 AIR 879, 1982 SCR (3) 298
3
1992 3 SCC 666
 Indian Practice
Indian constitution follows the dualisticdoctrine with respect to international
law4 . Therefore, international treaties do not automatically form part of
national law. They must, where appropriate, be incorporated into the legal
system by a legislation made by the Parliament5.
A treaty may be implemented by exercise of executive power. However, where
implementation of a treaty requires legislation, the parliament has exclusive
powers to enact a statute or legislation under Article 253 of the Indian
Constitution. The Article 253 empowers the Parliament 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 other body. Conferment
of this power on the Parliament is evidently in line with the power conferred
upon it by Entries 13 and 14 of List I under the Seventh Schedule.
Article 253 makes it amply clear that this power is available to Parliament,
notwithstanding, the division of power between the Centre and States effected
by Article 246 read with the Seventh Schedule. Where the Constitution does not
require action to be taken only by enacting a legislation or there is no existing
law to restrict the executive power of the Union (or the state, as the case may
be),6 the government would not only be free to take such action by executive
order or to lay down a policy for making of such executive orders, but also to
change such orders or the policy itself, as often as the government requires.

4
Jolly Jeorge Vs. Bank of Cochin AIR 1980 SC 470
5
Jolly Jeorge Vs. Bank of Cochin AIR 1980 SC 470; Gramophone Company of India Ltd. v. Birendra Bahadur Pandey AIR 1984 SC
667B
6
It is to be noted India is a federal State with a national government and a government of each constituent state. Although the
structure of India is federal in a general way, yet there are certain aspects that are unique to federalism as practiced in India. The
Indian government follows a strong central bias. Some of the special features of India are as follows: Single citizenship, unified
Constitution, No state has the right to secede. India has a quasi-federal system of government with the legislative and executive
powers divided between Union and States 12 Relying upon the Article
Implementation of International Obligations:
The basic provision of the constitution of India, by virtue of which international
law becomes implementable through municipal laws of India is Article 51 (c).
Article 51 (c) of the Constitution enjoins the State to endeavour to foster
respect for international law and treaty obligations in the dealings of organized
peoples with one another.
It is pertinent to mention that article 51 enshrines one of the fundamental
principles of State policy (DPSP), embodied in Part IV of the Constitution. The
directive principles, according to article 37, are not enforceable through the
court of law, nevertheless they are fundamental in the governance of the
country and there is a nonobligatory duty on the part of the State to apply these
principles in making of laws. Thus, the article 51 and the international law per se
are not justiciable in the realm of Indian municipal law. However, the non-
justifiability of Article 51 does not preclude government to strive to achieve the
objectives of the international treaty, which has been ratified by it, in good faith
through executive or legislative actions.
Further, judiciary, though not empowered to make legislations, is free to
interpret Indias obligations under international law into the municipal laws of
the country in pronouncing its decision in a case concerning issues of
international law.7 An examination of the decisions and practice of courts in
India is, thus, imperative to understand the implementation of international law
in India.

Position in India:
In India, SC has held in several cases such as Vishakha vs State of Rajasthan8,
Randhir vs Union of India9, Unnikrishnan vs State of Karnataka10, that domestic
laws of India, including the constitution are not to be read as derogatory to
International law. An effort must be made to read the domestic law as being in
harmony with the international law in case of any ambiguity. At the same time,
the constitution is still the supreme law of the land and in case of any directly
conflict the constitution will prevail.

7
2 Relying upon the Article 51, Sikri, C.J. in Kesavananda Bharathi vs. State of Kerala, (1973) Supp. SCR
8
AIR 1997 SC 3011
9
1982 AIR 879, 1982 SCR (3) 298
10
1992 3 SCC 666
In State of West Bengal v Kesoram Industries Ltd. & others.11a five judge
Constitutional Bench of Supreme Court observed: It is true that the doctrine of
Monism as prevailing in the European Countries does not prevail in India. The
Doctrine of Dualism is applicable. But, where the municipal law does not limit
the extent of the statute, even if India is not a signatory to the relevant
International Treaty or covenant, the Supreme Court in a large number of cases
interpreted the Statutes keeping in view the same.
In Civil Rights Vigilance Committee S.L.R.C. College of Law Bangalore v. Union of
India and others,12the High Court of Karnataka while dealing with power of
Courts to enforce Indias International Treaty obligations observed that; To
understand international law it is necessary to appreciate its close relationship
to the internal law of states, or as lawyers say, the municipal law of states; for it
is increasingly penetrating that sphere There are, broadly two different
methods by which precepts of international law are applied in the domestic
Courts of a State. By the first method it is accepted that international law is per
se a part of the law of the land and that the domestic court therefore, in an
appropriate case, applied international law directly. According to the second
method a domestic court can only apply and enforce its own internal law, and
the international law rule is binding only on the State itself, which must by
legislation transform the precept in to one of domestic law.

11
A.I.R. 2005 SC 46 at para 494
12
AIR 1983 Kar. 85 at para 13
 American Practice
Unlike India, the treaty making power and the status of international law in U.S.
is clearly provided under the U.S. Constitution. Article II Section 2 of the
Constitution of U.S.A. provides that; the President shall have power, by and
with the advise and consent of the Senate, to make treaties, provided two-
thirds of senators present concur. The President initiates and conducts
negotiations of the treaties and after signing them, places them before Senate
for its Advice and Consent.
A distinction is made in the U.S.A. between treaties and agreements. Treaties
are required by the Constitution to be submitted before the Senate for
approval/ratification. Whereas the agreements (known as executive
agreements), are entered into and signed by the President in exercise of his
executive power. The types of agreements so contemplated are those relating
to foreign relations and military matters that do not affect the rights and
obligations of the citizens.
However, in the case of trade agreements, such agreements are subject to
ratification by both Houses but only by a simple majority.
The position of International Law within Municipal Law is more complex and
depends upon a countrys Municipal legislation. In particular, treaties must be
distinguished from customary International Law. Treaties are written
agreements that are signed and ratified by the parties and binding on them.
Customary International Law consists of those rules that have arisen as a
consequence of practices engaged in by states.13
The Constitution of the United States stipulates (Article VI, Section 2) that
treaties shall be the supreme Law of the Land. Treaties are negotiated by the
president but can be ratified only with the approval of two thirds of the Senate
(Article II)except in the case of executive agreements, which are made by the
president on his own authority.

13
4 Referred from Nemanjalo Sukalo http://www.academia.edu/1114626/How_International_law_is_incorporated
_into_Municipal _law_and _why_ is_it_important.html.
Further, a treaty may be either selfexecuting or nonselfexecuting, depending
upon whether Municipal legislation must be enacted in order for the treaty to
enter into force. In the United States, selfexecuting treaties apply directly as
part of the supreme Law of the land without the need for further action.
Whether a treaty is deemed to be selfexecuting depends upon the intention of
the signatories and the interpretation of the courts.
In Sei Fujii v. State of California(1952), for example, the California Supreme
Court held that the UN Charter was not selfexecuting because its relevant
principles concerning human rights lacked the mandatory quality and certainty
required to create justiciable rights for private persons upon its ratification
since then the ruling has been consistently applied by other courts in the United
States.
In contrast, customary International Law was interpreted as part of federal Law
in the Paquette Habana case (1900), in which the U.S. Supreme Court ruled that
International Law forbade the U.S. Navy from selling, as prizes of war, Cuban
fishing vessels it had seized. Municipal legislation is supreme in the United
States even if it breaches International Law, though the government may be
held liable for such a breach at the International level. In order to mitigate such
a possibility, there is a presumption that the U.S. Congress will not legislate
contrary to the countrys International obligations.
 Conclusion
Indian constitution embodies the basic framework for the implementation of
international treaty obligations undertaken by India under its domestic legal
system. According to this, the Government of India has exclusive power to
conclude and implement international treaties or agreements. The President of
India is vested with the executive power of the Government of India and thus is
empowered to enter into and ratify international treaties.
This does not mean that international law, ipso facto, is enforceable upon
ratification. This is because Indian constitution follows the dualistic theory
with respect to incorporation of international law into municipal law.
International treaties do not automatically become part of national law in India.
They must be incorporated into the legal system by an act of Parliament, which
has the legislative powers to enact laws to implement Indias obligations under
the international treaty. Thus, in absence of specific domestic legislation
enacted by the Parliament, the Indias international obligations are not
justiciable in Indian Courts.
However, a perusal of the jurisprudence shows that a pro-active role is being
played by Indian judiciary in implementing Indias international obligations
under International treaties, especially in the field of human rights and
environmental law. Thus, Indian judiciary through judicial activism fills up of
the gaps in the municipal law of India and International law, thereby playing an
important role in the implementation of international law in India.
The above analysis of State Practices on the domestic use of international law
unleash novel picture indicating gradual departure from dualist approach to
monist in recent years. The trend is to recognize growing concern towards
human rights values in the new millennium. The invention of self-executing and
non-self executing treaties theory by the U.S. Supreme Court is seen as check on
the exclusive treaty making power of the federal government rather than
restriction on the use of international human rights norms.
 Bibliography
1. INTERNATIONAL LAW AND HUMAN RIGHTS, S.K KAPOOR, CENTRAL
LAW AGENCY, 2016.

2. PUPLIC INTERNATIONAL LAW, ABHIMANYU SINGH, MAHAVEER

PUBLICATIONS,1st EDITION, 2017.

3. https://www.academia.edu/ GOLAK PRASAD, REALATIONSHIP

BETWEEN INTERNATIONAL AND MUNICIPAL LAW.

4. Journal.lawmantra.co.in/ PRACTICE IN RELATION OF INTERNATIONAL

LAW IN INDIA.
 INDEX

S.NO. PARTICULARS PAGE NO.

1. INTRODUCTION 1.
2. RELASHIONSHIP BETWEEN MUNICIPAL AND 2.- 4.
INTERNATIONAL LAW
3. INDIAN PRACTICE 5.-7.
4. AMERICAN PRACTICE 8.-9.
5. CONCLUSION 10.
6. BIBLIOGRAPHY 11.