The Relationship between International Law and National Law
Author: Femi Ann Varghese
In the post-Westphalian order, states emerged as the supreme actors in the international political system until the latest phase of globalization began with the establishment of international organizations like the United Nations and the advancements in information and communication technology. Legally, all states are equal and sovereign. However, as the international actors are becoming increasingly interdependent and with the expansion of the scope of international law, the reality about the absolute sovereignty of the states is questionable.
In simple terms, national law (also called municipal law and domestic law) focuses on the domestic issues between individuals and between individual(s) and the state. Whereas international law governs the relations between various actors like states, non-state actors, individuals, etc. concerning issues arising in the international system. As a result of the increasing interconnectedness in the international society and dilution of sovereignty, there are a lot of fields where both international law and domestic law overlap resulting in ambiguity regarding which law will prevail over the other in case a conflict arises.
Approaches Clarifying the Relationship between International Law and National Law:
1. Dualism Theory –
Also known as positivism, this theory is propounded by those who believe in the supremacy of the state. International law exists due to the consent of the states. According to the positivists, due to the wide range of differences between the nature of intra-state and inter-state relations, the question of supremacy should not arise. International law and national law are separate legal systems having their separate jurisdictions and exist independently of each other. Each is supreme in its own sphere. International law can influence national law only if the states permit it.
2. Monism Theory –
The monists are united in adopting a unitary view of the legal system. Otherwise, there are divided based on two grounds:
a. Formalistic logical grounds led by Hans Kelsen
Since both international law and domestic law prescribe the behavior which should be followed by the subjects and lays down sanctions to discourage any deviant behavior, unity can be forged between the different systems. At the same time, states owe their legal relationship with one another (such as equality) as stipulated by international law. Thus logically, it will follow that international law is superior to national law.
b. Ethical grounds represented by Lauterpacht
This school is based on the belief that the primary function of all law is the protection of the rights of the individual. There is a suspicion regarding the absolute sovereignty and independence of states and faith in the moralistic tendency of international law. Thus, they advocate the superiority of international law.
3. A Third Approach
Advocated by Fitzmaurice and Rousseau amongst others, this approach states that “the entire monist-dualist controversy is unreal, artificial, and strictly beside the point.” International law and national law exists as two separate and independent spheres of activity and there is no common ground between them. If in case a conflict arises between these two legal systems, what happens is called “conflict of obligation” (according to Malcolm Shaw) or “conflict of law or Private International Law” (according to Fitzmaurice).It is resolved by the conflict rules laid down by the states before the domestic courts. Thus within a state, there cannot be a conflict between national and international law. Moreover, any conflict between them in the international field calls for remedy by the relevant international law because of its supremacy in that field.
With the increasing scope of international law, states have come to adopt an intermediate position as they apply international law in their domestic legislation based on the principles of coordination. Besides, international instruments have come to permit freedom of construction and application for the contracting parties - a space where they can operate their laws.
The Position of National Law before International Tribunals:
The general rule is that no state can justify any breach of international law by invoking municipal law. This provision is established by state practice, international cases (U.S. v. G. B. Moore, 1872, Westland Helicopters Ltd and AOI, Exchange of Greek and Turkish Population case, Greco-Bulgarian Communities case) and treaties and agreements (Article 3 of International Law Commission’s Articles on State Responsibility, Article 27 of the Vienna Convention on the Law of Treaties, 1969, Article 13 of the Draft Declaration on Rights and Duties of States, 1949). In general, the contracting states are obliged to conform to international law.
The Position of International Law before Municipal Courts:
An analysis in this respect will be complicated due to the varied nature of domestic laws of different countries. The principal factor that needs to be taken into consideration is that the states zealously guard their sovereignty. Constitutional texts, the attitude of the judiciary, and domestic legislation are other factors that need to be considered. The distinction between international law and municipal law is increasingly becoming blurred as international treaties may require the states to apply international law in their domestic law and due to the widening jurisdiction of the domestic courts in dealing with matters of the international arena. At times, the municipal courts may have to interpret international law to resolve a case before them or grant res judicata (binding effect) to domestic awards.
Practice in India:
The Parliament of India enjoys wide powers to give effect to international treaties in India (Article 253 of the Constitution of India). Where there are no specifications, the British and Commonwealth traditions are followed in creating and implementing treaties. Here, the power lies within the executive to decide whether or not to make and ratify a treaty. Additionally, Article 73 provides the Government of India with executive powers over areas where the Parliament of India has legislative powers.
The Constitution of India is the supreme law of India. Article 51 symbolically attaches importance to international law. However, since it forms Part IV of the Constitution, it shall not be enforceable by any Courts. The Supreme Court, in A.D.M. Jabalpur v. Shivakant Shukla AIR 1976 SC 1207, has stated that no law that violates the Constitution of India can be enforced in India. But in Gramophone Co. of India Ltd. V. Birendra Bahadur Pandey AIR 1984 SC 667: 1984 2 SCC 534, the Supreme Court acceded to the binding force of international law but with some qualifications. Thus, in India, courts apply international law so long as they are not inconsistent with the domestic laws.
International law has expanded over the years and has been instrumental in the growth of nations; in the light of the variant legal systems, it is seen that Anglo-American and civil law systems, follow the harmonization doctrine. The Common Law countries are different from such a doctrine, accepting more of a dualist approach towards including international law in municipal law. Over the years, the variations in ideologies have been a variance in the breakdown of certain legal matters. Natural law theory urges that there is an underlying natural law that governs all parts of the universe, including international law, and that the need for separation between them is not a justification for lack of universal adherence to the law.
Shaw, Malcolm N. (2017). International Law. Cambridge, UK: Cambridge University Press.
Singh, D. R., & Pratap, B. (2016). Textbook on Public International Law. India: Replika Press Pvt. Ltd.
Edited by Naga Om Siva Shirdik, Junior editor, Lawgic Stratum.