NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

Public International Law

The Relation between Municipal Law and International Law: A

look at the Indian Judicial Interpretation
Thirteenth Trimester

Submitted by:
Sanchit Asthana

2011 BALLB 87DECLARATION

The text reported in the project is the outcome of my own efforts and no part of this
report has been copied in any unauthorised manner and no part has been incorporated
without due acknowledgement.

Sanchit Asthana

INTRODUCTION
The conflict between domestic law and international law is a centuries old debate. At the
very outset, the question that leads the conflict is whether international law is actually
law. This has been a question of jurisprudence that has baffled jurists and legal
scholars. It is in the treatment of international law by domestic courts - a concrete
practical setting - and the question is contextual in form: is a particular type of
international law, law for a particular purpose in a particular domestic legal system?
Accounts of how domestic courts do, or should, treat international law are not presented
as answers to this question, but of course they are propositions about whether it counts as
law and if not, then what exactly its nature is. 1
The issue of the relation between domestic law and international law has been looked at
from various perspectives. However, one area where the debate is relatively fresher is the
conflict of laws. Therefore, domestic law and international law are seen from the
perspective of a conflict of laws. In a nutshell, international law is the law which usually
applies to the conflict between nations or even a simple matter concerning the relations
between nations (whether or not it is a dispute). Municipal or domestic law is the law
which applies within the territory of states, pertaining to different spheres of the law like
civil law, criminal law, corporate laws etc.
Earlier, the debate regarding the relationship between the two was more of a theoretical
debate. However, now it has assumed practical significance as well. However, over the
years the problem has assumed practical significance as well. This is because courts have
difficulty arriving at decisions where there is a conflict between domestic and
international law. Sometimes the courts are at a dead end or stalemate because they do
not know whether to apply international law or domestic law.
A famous scholar, Anzilotti, also talks about the relation between international law and
municipal law. In his various works, he has talked about the dichotomy between positive

1 Karen Knop, Ralf Michaels, and Annelise Riles, International Law in Domestic
Courts: A Conflict of Laws Approach, Cornell Law Faculty Working Papers, available

law and natural law. According to him, the relation between municipal law and
International Law can be explained along the same lines.
His main concern appears to be that of clearing international law from the undue
influence of concepts prevailing in municipal law. In his major study on the subject
(Diritto internazionale nei giudizi intemi), which was published in 1905, he traced a
distinction between international law and municipal law on the following lines: First of
all, they are enacted by different wills: international law stems from the collective will of
several States, while rules of municipal law are always the expression of the will of a
State, or better of the will belonging to a State, if one does not wish to prejudge the well
known controversy on the binding nature of custom, which many jurists consider as law
which is not State law, while nobody doubts that it belongs to municipal law. Secondly,
the relations which are respectively governed are different: norms of international law
govern relations between coordinated and autonomous entities, which are linked within a
community lacking a legal organization, and thus these norms are completely
independent from the existence of any power over these entities, while norms of
municipal law govern relations within a society which is legally organized and therefore
they implicitly contain an idea of supremacy and subordination - an imperium of the
collective entity over the members of society.2 He was thus of the clear view that the two
function within their independent sphere, which is the belief of the propounders of the
dualist theory.
THE MONIST AND DUALIST THEORIES
There are two mains theories in this regard. There is the dualist theory and the monoist
theory. We will discuss these individually and then understand what system India is
following.
Dualist theory: According to this theory, the International Law and Municipal Law of a
state are two distinct things. These two laws are independent and function in two
completely different spheres. eing separate systems, International Law would not as such
form part of the internal law of a 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
2 Scritti di diritto intemazionale pubblico, supra note 9, 1,281, at 319-320

internal law of the State, and apply as part of that internal law and not as International
Law. In such a case, the question of supremacy of one over the other does not really arise.
In simple words, this means that if the domestic laws of a state are framed in order to
ensure that the domestic law complies with a certain international law; or if the state
adopts a treaty or signs a convention which requires it to enact or amend a certain
legislation, only then can international law apply within the territory of the state. And
again, it applies by virtue of the domestic legislation.
In other words, though both the systems are distinct, the application of international law
by way of transformation or incorporation in the municipal law is only possible because
the municipal law conditions its validity and operation within the municipal sphere and
thus the municipal law gains supremacy over the international law. Therefore, in case
there is an inconsistency between the two, municipal law will prevail. In courts and
tribunals, even when the parties have a choice of law, the municipal law will prevail.
Dualist view was developed by a prominent German scholar Triepel in 1899. For him,
International Law and domestic or municipal law existed on separate planes, the former
governing international relations, the latter relations between individuals and between the
individual and the State.
Therefore, to conclude, this theory states that municipal law is applied to the dispute
within a state pertaining to municipal or domestic matters and functions separately from
the international law.
Monist Theory: This theory gained importance in the eighteenth century. It was
propounded by two German scholars Moser (1701-85) and Martens (1756-1821).
According to this doctrine there exists only one set of legal system, i.e., the domestic
legal order. According to this particular view, International law is not a distinct body of
law. There is no need to distinguish it from the municipal laws of the states since the
states themselves have made the rules of international law. Essentially, this view seems to
do away with the incorporation of international law in the municipal or domestic laws of
a country. In the opinion of its theorists, the two together form a single legal order.
International Law is therefore indistinguishable from the internal law of States and is of

significance only as part of the universal legal order. Various writers interpret the
universal order different ways. These differences stem from the general theoretical
concept of International Law as a universal legal system.
DOES INTERNATIONAL LAW HAVE A PLACE IN THE DOMESTIC LEGAL SYSTEMS?
Before we go any further, it is important to understand that the effectiveness of
international law also depends on the will of the states. It is evident that unless the states
explicitly understand that they are under an obligation to adhere to certain international
norms, they will not feel it is their duty to do so. The modern day principles of
international law have transgressed boundaries and moved against the stonewall of
sovereignty. The traditional notions of the relationship between International law and
Municipal law have undergone many changes. One of the most important ways that this
has been done is that the Indian Constitution also has an article relating to international
law and puts an obligation on the state to adhere to the same through changes in the
domestic legislation. A more implicit way is the judicial interpretation of international
treaties and statutes, and the often quoted principles of International law (conventions,
treaties etc.) in the judgments.
There are two major principles in this regard, the doctrine of incorporation and the
doctrine of transformation. In the former, it is said that international law rules can be
automatically integrated into the rules of domestic law so far as they are not in conflict
with the rules of domestic (municipal) law. The latter propagates that the rules of
international law are not considered a part of the rules of domestic law until they are
specifically and explicitly incorporated in the same.
In the English courts, many judgments given by Lord Denning talk about the origin and
history of the aforementioned views on the relation between international and municipal
law. He observed, in the case of Bavot v. Barbuit, that Lord Talbot had pointed out that
the law of nations in its full extent was a part of the law of England. This view was also
followed by jurists like Lord Mansfield and William Blackstone. The theory of
transformation was discussed by Lord Atkins in Chung Chi Cheung v. R3 where he said
that so far at any rate as the courts of this country are concerned, international law has
3 (1938) 4 All ER 768 at 790

no validity save in so far as its principles are accepted and adopted by our own domestic
law. In the case of Thakrar v. Secretary for the Home Department4, Lord Denning
subscribed to the doctrine of transformation. However, in a later case he changed his
stand and said that he was of the view that the doctrine of incorporation was indeed
correct.5
THE INDIAN JUDICIAL PERSPECTIVE
The Indian Judiciary has often dealt with the debate about the supremacy between
International Law and Domestic Law. Indian Constitution under Article 51 provides the
general obligations of India to the World by stating that: The State shall endeavour to:
(a) to promote international peace and security
(b) maintain just and honourable relations between nations
(c) foster respect for International Law and treaty obligations in the dealings of organised
peoples with one another
(d) encourage settlement of international disputes by arbitration.
A criticism of the studies in International Law in India is that there is insufficient research
done on the relations between the various kingdoms within India. Scholars are of the
belief that there is unsatisfactory work done as regards the aforementioned. The only
concrete research is on the relation between British India and the rest of the world, as
well as the influences of external relations between nations on British India.
In Shri Krishna Sharma v. The State of West Bengal, the Calcutta High Court stated that
the Indian Courts would apply rules of internal law which includes (a) the Constitution of
India, (b) the Statute enacted by the Parliament of India, and (c) the Statutes enacted by
the State Legislatures. The Court held:
If the Indian Statutes are in conflict with any principle of International Law, the
Indian Courts will have to obey the laws enacted by the legislature of the country
to which they owe their allegiance. In interpreting and applying municipal law,
the Courts will try to adopt such a construction as will not bring it into conflict
4 (1974) 2 All ER 261 at 266
5 Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria (1977) 1 All ER 881

with the rights and obligations deductible from rules of internal law. If such rules
or rights and obligations are inconsistent with the positive regulation of
municipal law, the courts override the latter. It is futile in such circumstances to
seek to reconcile, by strained construction which really irreconcilable.
Another interesting case is the case of Gramophone Recording Company v. Birendra
Bahadur Pandey6 where Justice Chinappa Reddy said that the nations must match with
the international community and municipal law must respect the rules of international law
even as nations respect the international opinion. He also quoted the doctrine of
incorporation of substantiate his opinion. He also said that in case the two areas of law
are in conflict, international law must prevail.
The Indian courts are also of the view that the Parliament does not lay down a law which
may potentially conflict with the rules of international law. However, in case there is a
conflict between international law and municipal law, the main thing to be kept in mind is
that both statutes (domestic and international) must be clear in their meaning. Only then
can we decide which one is to prevail.7
The Gramophone case was important because one of the principles that it laid down
clearly was that domestic courts could not adjudicate on subjects of international law. So
far as the issue of treaty interpretation goes, the Supreme Court had said that a treaty
would not bind the state unless the same has been ratified by the state. However, despite
this there could in implicit ratification as well because of certain actions performed by the
state parties.8 As to treaties, it is submitted that they shall not be binding upon Indian
Courts unless they have been implemented by legislation. The above view is based on
Article 253 of the Constitution which says that Parliament has power to make any law for
the whole or any part of the territory of India for implementing any treaty, agreement or

6 (1984) 2 SCC 534

7 V/o Tractorexport Moscow v. M/s Tarapore & Co. & Anr. (1970) 3 SCR 53, it discussed
Article 253 of the Indian Constitution which gives the Parliament the Supreme Power to
pass legislation with the country. It is however, silent on the treaty making power of the
Parliament.
8 UOI v. Sukumar Sengupta (1990) Supp. SCC 545

convention with any country or countries or any decision made at any international
conference, association or other body.
In Vishakha v. State of Rajasthan9, the Supreme Court held that the international
conventions and norms are to be read into them in the absence of enacted domestic law
occupying the field when there is no inconsistency between them. In the above case, a
writ petition was filed by certain social activists and NGOs for the realization of the true
concept of gender equality and to prevent sexual harassment of working women in all
work places, through judicial process to fill the vacuum in existing legislation. Reference
was given to Article 11 of the Convention on the Elimination of All Forms of
Discrimination against Women, which prohibits discrimination against women in the
field of employment i.e., equality in employment.
It was observed by the Court that equality in employment can be seriously impaired when
women are subjected to gender specific violence, such as sexual harassment in the work
place. Since in India there is no law to formulate effective measures to check the evil of
sexual harassment of working women at all work places, the Court held that the contents
of international conventions and norms are significant for the purpose of interpretation of
the guarantee of gender equality, right to work with human dignity in Articles 14, 15,
19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit
therein.
Conclusion
We can see that the Indian view on the relationship between Municipal Law and
International Law has been very flexible and has evolved through the course of various
judicial pronouncements. Judges who have adjudicated these cases are also of different
views, some subscribing to the transformation theory and some subscribing to the
incorporation theory. However, something which has been consistent is that there has
been constant emphasis on the need to adhere to the international norms and also
conventions and treaties.
This perhaps arises from the concept of state responsibility. This is because India has
been under British rules for centuries; and of the aims was to integrate itself as a nation
9 AIR 1997 SC 3011

state in the international community once it was independent. For this, it was important to
follows the rules of international law and show cooperation amongst the other nation
states. This is why India has been such an active member of the United Nations and the
agencies of the UN in India are constantly working to ensure the betterment of SouthEast Asian countries in terms of society and culture.
However, one cannot say very clearly whether India follows the monist or dualist view. I
am of the opinion that there is a mixed stand. Even when the concept of International
Law and evolving and was in its nascent stage in the Indian Courts, judges were of
differing opinions on the same. To a large extent our country has been influenced by the
law in England and the United States, which is also a common law country.
The main aim behind the incorporation of the international law has been to ensure that
India is a part of the international community. India has constantly tried to incorporate the
international law in its domestic legal system. Once again, this does not very clearly show
whether India is of the monist or dualist view. For instance, one surprising fact is that
India has not ratified the convention against child labour. However, it has incorporated in
the Constitution articles which prohibit the same. This goes to show that India considers
that the international law and the domestic law are two distinct legal systems and function
in independent sphere. However, an analysis of cases in the course of my research shows
that India has also ensured the conformity of its domestic law with the international law,
whether by incorporation or by transformation. This shows the affinity towards a view
which leans towards the monist theory.

Sources
Books
Bimanl N. Patel, India and International Law, Martinus Nijhoff Publications, Boston
(2008)
Christine Gray, International Law and the Use of Force, 3 rd Edition, Oxford University
Press
Ian Brownlie, Basic Documents in International Law, Oxford University Press
Ian Brownlie, The Rule of Law in International Affairs, Martinus Nijhoff Publishers
J. Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to
Other Rules of International Law (2003)
Malcolm N. Shaw, International Law, Fifth Edition, Cambridge University Press
S.A. Alexandrov, Self-Defence Against the Use of Force in International Law (1996)

Articles
AFM Maniruzzaman, State Contracts in Contemporary International Law: Monist versus
Dualist Controversies, European Journal of International Law 2001 Vol. 12 No. 2 309328 available at http://www.ejil.org/pdfs/12/2/1519.pdf
Giorgio Gaja, Positivism and Dualism in Dionisio Ansilotti, 3 European Journal of
International Law, 1992 p. 123 available at http://www.ejil.org/pdfs/3/1/1170.pdf
International Law in India, The International and Comparative Law Quarterly, Vol. 1,
No. 3, Jul., 1952