Lecture Series No.

03
International Law and
Municipal Law
Mrs.T.Shayanthan
Senior Lecturer in Law
Department of Law
University of Jaffna
Introduction
• While rules are available at international law (IL) and municipal law
(ML) for a dispute, there will be a difficulty to determine the
application of the international law and municipal law.
• When there is a conflict between international law and municipal law,
which law will prevail over the other?
• To determine these, it is important to learn the theories and rules
related to the relationship between international law and municipal
law.
Theories on the Relationship
• There are two principal theories on the relationship:
• Monism
• Dualism
Monism
• According to monism, international law and municipal law are the components of one
system of law in general.
• It derives its origin from the law of nature which binds equally the States and individuals.
• They regard law as a single unified field of knowledge, consisting of rules, whether binding
on States, individuals, or on other entities.
• Decisive point here is whether or not international law is true law. Once it is accepted as
true law, then there is no intrinsic difference between the two.
• Kelson is the chief exponent of the theory and Lauterpacht, Fitzmaurice and Starke along
with him supported to the theory and argued that since the behaviour of States is
reducible to the behaviour of individuals representing the State, the alleged difference in
subject matter between the two systems cannot be considered a difference. Therefore,
there is no dichotomy between international law and municipal law and they operate
without any conflict at any levels (national / international).
Dualism
• According to dualism, international law and municipal law represent two
entirely distinct and self-contained legal systems until one is incorporated into
other.
• The theory of dualism grew out of nineteenth century positivist philosophy
which emphasized on the will of the State as the sole criterion for the creation
of rules of international law.
• Under the dualist theory, international law and municipal law operate on
different levels. According to dualist, while international law regulates mainly
the relations and obligations between sovereign and independent States, the
municipal law operates and regulates the relations and obligations of
individuals within a State.
• The chief exponents of the theory are Tripel and Anzilotti.
Difference between IL and ML
• Subject matter (States, Individuals, International Organs, entities)
• Sources (application of laws: customs, treaty, judicial decisions,
constitution, legislation..)
• Juridical origin (forum whether the dispute is brought before
international or national level, jurisdiction of courts)
Question of Primacy in case of
conflict between IL and ML
• Dualist approach
• Dualist view that State is independent and it enjoys the widest liberties and exercises almost
complete sovereignty. Therefore, they give prominent place to the sovereignty of the ‘State will’,
they ascribe primacy to municipal law over international law.
• Example States: Sri Lanka, India, United Kingdom, Sweden
• Monist approach
• Monist are divided on the issue. Kelsen’s view on the relationship were coloured by his
philosophical approach of PURE THEORY OF LAW. He maintains that in accordance with his
‘hierarchical’ or grundnorm doctrine, each rule is conditioned by a superior rule for its validity and
thus, in turn, it derives validity from the fundamental postulate. i.e. Grundnorm may belong
either to IL or ML.
• But according to Starke, a monist, primacy lies with international law.
• Most of the States have reiterated this position in their constitutions by accepting the supremacy
of IL.
• Example States : Belgium, France, Germany, Netherlands
Fusion and confusion of IL and ML in
their application
• The controversy between monism and dualism is more academic than
real since there is no express incorporation of the theories in their
national constitutions or international treaties or conventions.
• They merely indicate general approach towards the implementation
of international law at the national level.
• Vienna Convention on Law of Treaties provides rules to remove the
disputes between the two at some point.
Theories on the application of IL
within national context
• The following theories are, in fact, the manifestation of the theories
of dualism and monism:
• Transformation or Specific Adoption Theory
• Delegation Theory
Transformation or Specific Adoption
Theory
• The theory is supported by positivists. They view treaties as promises
and municipal statutes as commands. To make treaties binding
municipally, their transformation into statute is formally and
substantively necessary.
• The rules of international law cannot impinge upon State law unless
they undergo the process of transformation and be specifically
adopted by, or incorporated into the State law, there being no
automatic application. E.g. R v. Keyn
Classroom Activity
• Form groups with each three rows where you sit.
• Download International Covenant on Civil and Political Rights and
ICCPR Act of Sri Lanka
• Compare the provisions of ICCPR and ICCPR Act
• Look at whether Sri Lanka has reserved any provisions of ICCPR?
• What are the provisions of ICCPR incorporated into the Act?
• Any important provisions not incorporated into the Act?
Subject matter ICCPR ICCPR Act
Continue…
• To make a rule effective at the national level, each State will
determine its own mechanism. The national legislature may
‘transform’ it into a rule of national law, which will be applied by the
courts as a rule of national or municipal law.
• It is argued that unless there is a ‘transformation’ of the treaty into
municipal law (i.e.legislation for implementing the treaty), it cannot
be enforced in the municipal context.
R v Keyn (1876) - Franconia case
• Keyn was the commander of the German ship Franconia, which collided with
the British ship Strathclyde two and a half miles off Dover beach, causing the
death of 38 of the Strathclyde’s passenges.
• Keyn was prosecuted for manslaughter and convicted by an English Court.
• He appealed on the ground that the court lacked jurisdiction to try him,
because he was a foreigner and at the material time sailing on a foreign ship
on the high seas.
• The Crown maintained the collision, having occurred within three miles of the
shore, had occurred within the realm and so within British jurisdiction.
• The court allowed the appeal with the judgment in favour of Keyn with the
majority of seven to six.
Ratio of the case
• The Court held that even though Great Britain might be entitled to
claim a territorial sea, it had not expressly done so and until
Parliament made that extended to foreigners and foreign ships
beyond British shores, the area is high sea.
Delegation Theory
• Monist maintain that there is no need for international obligations to be
transformed into rules of national law.
• In case of any apparent conflict between the two, the international rule prevails.
• The application of rules of international law to the municipal context is a
continuation of one single process which starts with the creation and acceptance
of international law rule by the State.
• The constitutional rules of international law delegate to each States’ Constitution
the right to determine the procedure and the manner to make treaties effective
at the domestic level.
• Accordingly, State enjoys complete sovereignty and widest liberty of action and
this process does not impinge upon the sovereignty of the State.
Municipal Law before international
dispute settlement forums
• If there is a dispute brought before the international courts, tribunals
or other dispute settlement forums concerning the issue whether a
State is in breach of international law, it is normally expected that
preference would be given to the rules of international law over the
municipal laws of the disputed States.
• Obligations of the States undertaken under the treaties and
conventions should be consistent with the provisions of the Vienna
Convention on the Law of the Treaties.
Vienna Convention on Law of
Treaties (VCLT)
Non-retrospective effect
• Article 4 – The Convention does not apply to the treaties before the
convention came in force.
Process of adoption of a treaty –
Article 9
• A treaty shall be adopted with the consent of States participating in
the Conference organized for such adoption.
• However, the consent of States is considered to be the two third
majority of participating States in the Conference.
Means of Expression of Consent –
Article 11
• Signature
• Exchange of instruments constituting a treaty
• Ratification
• Acceptance
• Approval or accession
• Other means stipulated in a treaty
Article 18 – Obligation not to defeat the object and
purpose of a treaty prior to its entry into force
• A State is obliged to refrain from acts which would defeat the object
and purpose of a treaty when:
a. It has signed the treaty or exchanged instruments subject to ratification,
acceptance, approval or until it shall have made its intention clear not to
become a party to the treaty
b. It has expressed its consent to be bound by the treaty, pending the entry
into force of the treaty and provided that such entry into force is not
unduly delayed.
Article 19 - reservation
• A State may, when signing, ratifying, accepting, approving or acceding
to a treaty, formulate a reservation unless:
a. The reservation is prohibited by the treaty
b. The treaty provides that only specified reservation, which do not include
the reservation in question, may be made; or
c. The reservation is incompatible with the object and purpose of the treaty.
Article 26 – Pacta sunt servanda
• Every treaty in force is binding upon the parties to it and must be
performed by them in good faith.
Article 27 – Internal Law and
Observance of Treaties
• A State cannot invoke its municipal law for non-observance of treaty
obligations.
Article 28 –Non-retroactivity of
treaty
• Provisions of the Convention do not bind a party in relation to any act
or fact which took place or any situation which ceased to exist before
the date of the entry into force of the treaty with respect to that
party.
Article 34 – Application of Treaty to
third party
• A treaty does not create either obligations or rights for a third State
without its consent.
Article 38 – Application of a Treaty to
third State through customs
• A third State may be bound by a provision of a Treaty which is
considered to be a part of customary rule of international law.
Article 46 – Provisions of internal law
regarding competence to conclude
treaties
• A State cannot invoke the fact that its consent to be bound by a treaty
has been expressed in violation of a provision of its internal law
regarding competence to conclude treaties as invalidating consent
unless that violation was manifest and concerned a rule of its internal
law of fundamental importance.
• A violation is manifest if it would be objectively evident to any State
conducting itself in the matter in accordance with normal practice and
in good faith.
Article 53 – peremptory norms - Jus
cogens
• A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law.
• For the purposes of the present Convention, a peremptory norm of
general international law is a norm accepted and recognized by the
international community of States as a whole as a norm from which
no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same
character.
Article 64 – Emergence of a new
peremptory norm jus cogens
• If a new peremptory norm of general international law emerges, any
existing treaty which is in conflict with that norm becomes void and
terminates.
Homework
Look at the constitution of the following countries and identify the
theories followed by the countries
• USA
• Netherlands
• German
• India
• Sri Lanka
• Compare
• ICCPR and ICCPR Act
• Geneva Conventions of 1949 and Geneva Conventions Act