Introduction
Certain theories are propounded to clarify the link between law and Municipal Law. In general, it's notionally accepted that the state municipal law controls the conduct of people within the state while countries control the relations of nations. But now this idea has altogether been changed and also the scope of the law has increased and it not only determines and controls the relations of states but also the relations of members of the International community. Both the laws have cohesion with one another and also the relations between these two are more prominent. These theories are proposed to clarify the link between law and State Law.
Two aspects are to be noted within the relationship between Municipal Law & law. One is that the theoretical question of whether both laws are a part of a Universal legal order, or, are two different systems. the opposite is that the conflict between them within the Municipal courts on the primacy of Municipal Law over the law, or vice versa.
There are two basic theories, with a variety of variations within the literature, on the link between international and domestic law. the primary doctrine is named the dualist (or pluralist) view and assumes that law and municipal law are two separate legal systems which exist independently of every other. The central question then is whether or not one system is superior to the opposite. The second doctrine, called the monist view, incorporates a unitary perception of the ‘law’ and understands both international and municipal law as forming a part of one and also the same legal order. the foremost radical version of the monist approach was formulated by Kelsen. In his view, the last word source of the validity of all law derived from a basic rule (‘Grundnorm’) of law. Kelsen’s theory led to the conclusion that each one rules of law were supreme over municipal law, that a municipal law inconsistent with the law was automatically null and void which rules of law were directly applicable within the domestic sphere of states.
Two Schools
The two schools are the Dualistic & the Monistic schools
Monistic School:
The monist theory, developed by Kelsen, asserts that there's a relationship between national and law, with the law being supreme. Monists argue that as law ultimately regulates the conduct of people, there's a commonality between international and national law which both ultimately regulate the conduct of the individual. Therefore, each system may be a ‘manifestation of one conception of law’. It is also known within the name of Monism theory. in keeping with the exponents of this theory law and Municipal Law are intimately connected. law and Municipal Law are the 2 branches of unified knowledge of the law which apply to the human community in some or the opposite way. All Law is created for people. The difference is that municipal law is binding on the individual while the law is binding on states. Conclusively it is said that the foundation of all laws is individual.
According to Strake, “International Law is an element of state Municipal Law and so decisions are given by Municipal courts in keeping with the foundations of law.”
According to O.Kornell, “The objective of all laws is human welfare whether it states municipal law or law.”
According to Anzilottii and Triepel, “Law & Municipal Law are two separate & distinct systems of law-one is that the antipode of the opposite.”
Sources: Municipal law has Acts of Parliament arid local custom as sources of law, whereas law has treaties and International customs as primary sources. Thus, they're different.
Secondly: Individuals are subjects in Municipal law, whereas the States are subjects in law.
Thirdly: Under Municipal law, the State has its sway over the individuals, whereas law is between or among the Sovereign States.
Dualistic School:
The dualist approach views international and national law as two separate systems that exist independently of one another. This theory relies upon the ‘assumption that law and municipal legal systems constitute two distinct and formally separate categories of legal orders’ because they ‘differ on their sources, the relations they regulate and their legal content.’ Therefore,
these two systems are seen to be firmly independent of each other, as neither can claim supremacy. Where the law is incorporated into national law by the state, this is often seen as an exercise of authority by the state, instead of the law imposing itself into the domestic sphere. From a practical perspective, if a national court in an exceedingly dualist state is considering a case and there's a conflict between international and national law, the court (in the absence of any legislative guidance to the contrary) would apply domestic law.
Dualists school has been opposed by the Monistic school (also called Vienna School) which holds the subsequent views: (founder Kelsen).
Firstly: Ultimately, it's the conduct of the person who is regulated in both the systems of Municipal and law. Secondly: Law may be a command on the topics (Individuals or States) independently of their will. Thirdly: Both the systems are the manifestations of one, the conception of law. Two branches of the identical tree. From the above schools, it's evident that law and Municipal law are separate in keeping with the Dualists but one and also the same in keeping with the Monists. Given the dualistic theory writers, law and State Law are two separate laws and contain legal systems. The Monist view of law is an element of philosophy in keeping with which totality may be a single structure. But within the framework of the unitary universe is that the diversity of phenomenon. The law cannot become a part of state municipal Law until the principles of law are applied under State Municipal Law.
Anzilotti has also recognised both the systems as two different legal systems. According to him the basic principle of State Municipal Law in compliance with the law enacted by state legislature while the principle of the law of nations is Pacta Sunt Servanda i.e. to honour the agreements executed between the states.
The main basis of separation of those two systems is as follows: -
● The main source of the law of nations is customs and treaties while just in case of Municipal Law are an enactment by the sovereign power.
● International Law controls the relations between state while state law controls the relations between state and individuals.
● The main explanation for compliance of state law is that the fear of sanction while the idea of compliance of the law of nations is that the moral liability and vested interests of states.
The practice of States: Within the U.K.: Primary Rule
International Customs: per Blackstone, Customary law of nations is a component of the law of the land. British Courts follow this rule but subject to 2 conditions;
1. That such a rule shouldn't be against any British Statute.
2. that when the Court decides, it's followed thereafter.
The Blackstone's Theory was confirmed by judicial determinations (Dolder V. Hunting field, Nevello V. Toogood etc.).
Leading cases:
R.V. Keyn (Franconia Case) 1876
Franconia, a German ship, collided with a British vessel within British Maritime Belt. British Vessel sank and one person -died. British Court convicted the master of the German ship for manslaughter. The question arose about the jurisdiction of the Court because the incident had happened within British water. The House of Lords held that English people Court was 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.
West Rand Gold Mining Co. V. King 1905
This was a corporation working a gold mine in the African nation. The Govt. officials seized gold belonging to the corporate & per laws they were to pay compensation or return the identical. The African nation was defeated by the British, and therefore the gold was dropped at England. Thereupon, the corporate sued English people Govt. for return of the gold or compensation. The Crown made a Declaration which stated that British Govt. as a successor wouldn't respect the commitments of the South African Govt. The Court held that the corporate wasn't entitled to the gold or for compensation, because the Crown Declaration was Municipal Law. binding on Municipal Courts Hence, municipal Law prevailed.
Chung Chi Cheung V. King (Privy Council)
C was a servant on board a Chinese vessel. 'When the Vessel was in Hongkong water, 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 undertake the case. The council held that the Court had jurisdiction. The conviction was affirmed.
Conclusion
It is clear that in many countries the law will sometimes fail to reflect the proper rule of law of nations. But this doesn't necessarily mean that these states are going to be breaking the law of nations. fairly often the divergence between national law and law of nations simply implies that the respective state is unable to exercise rights which law of nations entitles (but doesn't require) that state to exercise. Even when a rule of municipal law is capable of leading to a breach of the law of nations, it's the appliance of the rule, and not its mere existence, which normally constitutes the breach of international law; consequently, if the enforcement of the rule is left to the manager, which enforces it in such how that no breach of the law of nations occurs, all is well. as an example, there's no must pass an Act of Parliament to exempt foreign diplomats from customs duties; the government can do the identical result by simply instructing customs officers to not levy customs duties on the belongings of foreign diplomats.
– Shishir Yadav
Faculty of Law, University of Lucknow
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