INTRODUCTION

International Law and Municipal Law are two separate legal orders existing independently.
An internal law cannot become an International Law. An International Law can become an
Internal (Municipal) Law. While International law is applied in the relations of the states and
to the other subjects of International Law, national or State law which is called municipal law
is applied within a state to the individuals and corporate entities which are the bearers of
rights and duties thereunder. International law does not determine which point of view is to
be preferred, monism or dualism. Every state decides for itself, according to its legal
traditions. International law only requires that its rules are respected, and states are free to
decide on the manner in which they want to respect these rules and make them binding on its
citizens and agencies. Apparently, it might be looking that there is hardly any relationship
between the two systems as they constitute two different legal systems each of which is
designed to operate in its own sphere and they are applied distinctly to their subjects by
different courts, but it is not so. The problem of relationship between the rules of
International Law and municipal law is one of the controversial questions of legal theory.
Originally, the relationship between the two laws as a matter of theoretical importance, i.e.
whether international law and municipal law are parts of universal legal order or they form
two distinct systems of law. The question of relationship between both the systems acquired
importance in modern International Law also because a very large part of it is directly
concerned with the activities of individuals who come under the jurisdiction of municipal
courts.
The view of the jurists on the question of relationship of International Law and Municipal
Laws are divergent which have led to the emergence of divergent theories. Certain theories
have been propounded to explain the relationship between the International Law and
Municipal Law. Following are the some of the important prominent theories in this
connection: a) Monism b) Dualism c) Specific Adoption Theory d) Transformation theory e)
Delegation Theory. These theories have been put forward to explain the relationship between
International Law and Municipal Law or State Law. Of all these theories the most important
and popular theories are Monism and Dualism and they are diametrically opposed to each
other.
According to the dualist theory, the system of International Law and Municipal Law are
separate and self-contained to the extent to the rules of the one are not expressly or tacitly
received into the other system. The two are separate bodies of legal norms, emerging in part,
from different sources compressing different subject, and having application to different
object". According to monistic theory, municipal law and international law are parts of one
universal legal system serving the needs of human community. They both are species of one
genus.

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INTERNATIONAL LAW AND MUNICIPAL LAW:
International law, a term coined around 1800 by philosopher Jeremy Bentham, refers to the
body of legal decisions, rules, and customs that regulate the discourse between nations (e.g.,
human rights, military intervention, and global concerns such as climate change). Conversely,
municipal law governs the actions of individuals and commercial entities within the borders
of sovereign states (e.g., civil codes and criminal statutes).
International Law is the law which governs the Relations of sovereign independent States.
International law is a set of legal fields that govern issues that cross national borders. It
includes the law of war, the Geneva Conventions, international treaties on trade or copyright
or aviation, international rules for sale of goods, etc. — anything that involves legal issues
that involve relationships between countries or between people or companies in different
countries. International law is the law between countries. It is a nebulous concept but
international law becomes law when the vast majority of countries adopt it. Traditionally,
international law consists on a series of rules and principles governing the relations and
dealings of nations with each other, though recently, the scope of international law has been
redefined to include relations between states and individuals, and relations between
international organizations.

Municipal law means the law enacted by a particular city government. Municipal law is the
law enacted by a local municipality and only applies in that jurisdiction. While Municipal
Law refers only to a local governmental unit, a city or town. In its broader sense, it is
regarding to the public or governmental affairs of a state, nation, or of a people. It is relating
to a state or nation, particularly when considered as an entity independent of other states or
nations. Municipal law or State law or national law is the law of a State or a country and in
that respect is opposed to International Law which consists of rules which civilized States
consider as binding upon them in their mutual relations.
Kelsen observes that national law regulates the behaviour of individuals and International law
regulates the behaviour of States or as it is put whereas national law is concerned with the
international relations the so called domestic affairs of the State. 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 enforcement1.

1
https://www.wikihow.com/Distinguish-International-Law-from-Municipal-Law

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When questions and conflicts arise in the relationships between sovereign nations, they are
solved under the rules of public international law. This body of law consists of the treaties
and legal decisions interpreting those treaties.

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Theories as to Relationship Between International Law and Municipal
Law: Dualism & Monism:
Dualists see International Law and Municipal Law as distinct and separate – arising from
different sources, governing different areas and relationships, and different in substance. If
international law ever becomes part of domestic law, that can only be because domestic law,
has chosen to incorporate it. Monists on the other hand contend that there is only one system
of law, of which international and domestic laws are no more than two aspects. They justify
this by claiming that both of them govern sets of individuals; both are binding, and both are
manifestations of a single concept of law. Hence international law is superior and stronger, as
it represents the system’s highest rules – jurisdiction on a domestic level being only delegated
to states, which cannot avoid being bound to apply international law at the domestic level. So,
if domestic law anywhere conflicts with international law that is the State’s fault, and will not
excuse the State’s obligations. Viewed on the international plane, the dispute between these
two schools of thought is indeed academic. “Formally international and domestic law as
systems can never come into conflict. What may occur is something strictly different, namely
a conflict of obligations or an inability for a state on the domestic plane to act in the manner
required by international law”. It is well settled that international law will apply to a state
regardless of its domestic law and that a state cannot in the international forum plead its own
domestic law, or even its domestic constitution, as an excuse for breaches of its international
obligations. Viewed on the domestic plane, however, the dispute is not merely an academic
one, for the two schools of thought lead to very different results. Whether international law
forms part of domestic law is a question, which in practice, is decided either by the
Constitution or a Statute or by the domestic Courts of each State. Monists say that it will
always form such a part; dualists, that it will form part only if the domestic law has expressly
as impliedly incorporated it. In fact, many States expressly accept international law as part of
their domestic law, leaving academicians to debate whether the acceptance was necessary or
superfluous. But others do not2.
Every state has a duty to carry out in good faith its obligations arising from treaties and other
sources of international law, and may not invoke provisions in its own constitution or its laws
as an excuse for failure to perform this duty’. This formulation was later commended by the
U.N. to its Members in U.N.G.A. Resolution. Where international law becomes incorporated
in a State’s domestic law without the need for specific legislation, those parts of it, which are
sufficiently explicit to be enforceable by the domestic courts, are known as ‘self-executing’.
Some States provide by their Constitutions that certain provisions of international law shall
be self-executing. For example, the Constitution of the U.S.A. provides that international
treaties are part of the law of the land. Other countries have gone even further by not only
making international law self-executing, but assigning to it a rank in the domestic hierarchy
superior to all prior and subsequent legislation. But there are other States that do not accept
any international law as self-executing, or so accept it in part. For example, United Kingdom
(U.K.).

2
“Dr. S.K. Kapoor”, “ International Law and Human Rights”, Central Law Agency, 18 th Edition 2011 (Pg no-101-
102)

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DUALISTIC THEORY OF INTERNATIONAL LAW:
It is more popular theory than monistic theory and majority of nations follow this. In the view
of dualistic writers, International law and state law are two separate entities. Dualists
emphasize the difference between national and international law, and require the translation
of the latter into the former. It is also called Pluralistic Theory.

According to Dualistic theory, International Law and Municipal Law of several states are two
distinct, separate, and self- contained legal systems. Being separate systems, International
Laws would not as such form part of the internal law of the state: to the extent that in
particular instance rules of International Law may apply within a state they do so by virtue of
their adoption by the internal law of the state. Such a view avoids any question of the
supremacy of the one system of law over the other as they share no common field of
application: each is supreme in its own sphere. Transformation of international law into
municipal law may take place according to the constitutional laws of that country. Under this
international law and municipal law operates on different levels. Proponents of “dualism”
thinks that international law and domestic law don’t operate on the same plane
sphere, so there can’t really be any conflict between the two, since they don’t have the same
object and internal provisions are applied exclusively between the state’s borders and can’t
intervene in the international legal system. An international treaty would only be
effective at an international level in order for it to be applied domestically in a
contracting state and that state would first have to adopt the provisions of the treaty into a
national provision (i.e. some type of domestic legislation). The treaty& the international
provisions of the treaty pass through a transformation, which allows them to be applied as an
internal regulation, part of the domestic law and not international law.
Dualistic view was developed by a prominent German Scholar Triepel in 1899. For him,
international law and domestic laws existed in separate planes, the former governing
international relations, the latter relations between individuals and between the individuals
and the state. The theory was later on followed by the Italian jurist Anzilotti. Starke says that
the theory represents two entirely distinct legal systems, International law intrinsically have
different character from that of state law. The theory of dualism grew in nineteenth century
and twentieth century partly as a result of philosophical doctrine. For example, Hegal
emphasising the sovereignty of the state will and partially as a result of the rights in modern
state of legislature with complete internal legal sovereignty, there developed a strong trend
towards the dualistic theory.

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Differences between the two systems

The above authors are of the view that the two systems of law differ from each other on the
following grounds3:

a) Regarding Sources:

According to the dualists, while the sources of municipal laws are customs grown up
within the boundaries of the state concerned and the statutes enacted by the sovereign, the
Sources of international law are customs grown up among the states and law-making
treaties concluded by them.

b) Regarding Subjects:

Dualists are of the view that the subjects of international and municipal law are different
from each other. While municipal law regulates the relations between the individuals and
corporate entities and also the relation between the State and the individuals, International
Law regulates primarily the relations between States

3
“H.O. Agarwal”, “International Law and Human Rights”; Central Law Publications, 21st Edition 2016 (pg no.-
42-43)

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CONCLUSION:
Thus at last it can be said that Dualism is historically rooted in the doctrine of separation of
powers and in the English positivist school of the seventeenth and eighteenth century, which
rejected the monist belief in the unity of domestic and international law in favour of a
distinction of domestic from international law on the basis of the sovereignty of nations.
Dualists regard international law and domestic law as two completely different systems of
law. According to Malenovsky, international and municipal law are based not only on
different jurisdictions and sanction bodies, but also on different subject matter and sources.
While international law governs the relationship between states, domestic law governs the
rights and obligations of individuals within states, and while International law originates from
custom, domestic law, is a product of legislation. Furthermore, dualists assert that while
international law is founded on the common willingness of several states, domestic law
depends exclusively on the unilateral willingness of one State. Thus, international law creates
rights and duties among States, which each individual State must determine the manner in
which it complies with. The result of this is that international human rights norms ratified by
dualist states are not enforceable until they have been incorporated or transformed into
domestic law.

The debate on the difference and supremacy between international law and municipal law by
monist and dualist has been characterised by as ‘unreal, artificial and beside the point’. As,
since both systems of law do not operate in a common field, there can be no conflict because
any apparent conflict in the domestic field would be solved by the conflict of law rules of the
forum, while that of international field will be solved by international law. It is said that the
relationship between international and domestic law to the relationship of two sovereign
countries, where there is conflict, the conflict of law rules determine how it is settled before
the relevant national court. It is useless to discuss the supremacy of international law as each
is supreme in its own sphere.

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