GENERAL RELATIONSHIP

BETWEEN
INTERNATIONAL LAW
AND DOMESTIC LAW

International law project

Abstract
This project aims to study about the relation between international law and domestic law in
depth. There are two theories mainly used to define the relationship between internal law and
international law- monistic theory and dualistic theory. Besides that there are other theories as
well. This also discuss in detail the place of international law provided by the Constitution of
India.

Introduction

International Law is the law which governs the Relations of sovereign independent States inter se
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 behavior of
individuals International law the behavior of States or as it is put whereas national law is concerned
with the international relations the so called domestic affairs of the State. International Law is
concerned with the external relations of the State its foreign affairs.

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 enforcement.

There is a divergence of opinion on the question as to whether International Law and Municipal
Law on the various national laws can be said to form a unity being manifestations of a single
conception of law or whether International Law constitutes an independent system of law
essentially different from the Municipal Law. The former theory is called monistic and the latter

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dualistic.

International law

Interantional law is the set of rules that most countries obey when dealing with other
countries1.International law is the universal system of rules and principles concerning the relations
between sovereign States, and relations between States and international organisations such as the
United Nations.2 The most common answer to this question refers to the sources of international
law, set out in article 38 of the Statute of the International Court of Justice. Under article 38, that
includes3:

a. international conventions,

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. judicial decisions and the teachings of the most highly qualified publicists

of the various nations, as subsidiary means for the determination of rules of law.

The modern international law was developed in Europe from the 17th century onwards and is
commonly accepted by all countries around the world. The areas under the International law
includes telecommunications, postal services and transportation (such as carriage of goods and
passengers); international economic law (including trade, intellectual property and foreign
investment); international crimes and extradition; human rights and refugee protection; the use
of armed force by States and non-State actors; counter-terrorism regulation; nuclear technology;
protection of the environment; and use of the sea, outer space and Antarctica. The Cooperation
between different countries in these fields are necessary for the holistic development of the world
and thus it leads to necessity of a set of rules binding on them so as to avoid conflicts and disputes

1
http://dictionary.cambridge.org/dictionary/british/international-law, accessed on 7th mar 2015, 1.06 pm
2
International law / [author, Jane Stratton; editor, Cathy Hammer]. Publisher: Sydney, N.S.W.: Legal Information
Access Centre, 2009, Hot topics (Sydney, N.S.W.) ; no. 69, P.g no 1;available at
www.legalanswers.sl.nsw.gov.au/hot_topics/pdf/international_69.pdf
3
Contrary to the common law, judicial decisions or “case law” usually cannot in themselves create binding
law or be binding authority within international law. However, judicial decisions can provide assistance in
determining the specific contours and content of customary legal rules. Article 38(d).

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between them. One of the important aspect of international law is resolving international disputes.
Like any legal system, international law is designed to regulate and shape behaviour, to prevent
violations, and to provide remedies for violations when they occur.

DIFFERENCE BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW

International law is concerned with the rights and duties of States in their relations with each other
and with international organizations. Domestic (municipal or national) law, the law within a State,
is concerned with the rights and duties of legal persons within the State.

International law differs from domestic law in two central respects:

1. The law-making process

There is no supreme law-making body in international law. Treaties are negotiated between States
on an ad hoc basis and only bind States which are parties to a treaty. The General Assembly of the
United Nations is not a law-making body, and so its resolutions are not legally binding. However,
UN Security Council resolutions to take action with respect to threats to peace, breaches of the
peace, and acts of aggression, are binding on the 192 member States.4

Domestic law is made by legislation passed by their own parliaments based on the principles based
on their constitution and those developed by their own courts. Parliaments are the supreme law-
making bodies with power to make the laws, while courts are empowered to interpret the law and
apply it to individual cases. Parliaments are the supreme law-making bodies with power to make
the laws, while courts are empowered to interpret the law and apply it to individual cases.

2. Enforcement

International law has no international police force to oversee obedience to the international legal
standards to which States agree or that develop as international standards of behaviour. Similarly,
there is no compulsory enforcement mechanism for the settlement of disputes. However, there are
an increasing number of specialised courts, tribunals and treaty monitoring bodies as well as an
International Court of Justice. National laws and courts are often an important means through

4
see UN Charter, Chapter 7.

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which international law is implemented in practice. In some instances, the Security Council can
authorise the use of coercive economic sanctions or even armed force. For example, in 1990 – 91
when Iraq invaded and occupied Kuwait the international community used armed force to enforce
international law (resolutions of the Security Council). Subsequent controversy about the use of
armed force against Iraq highlights how difficult it can be to obtain the necessary authorisation
from the Security Council under the United Nations Charter. In international law, that is the only
legitimate way that collective armed force can be used. In general, international law is enforced
through methods such as national implementation, diplomatic negotiation or public pressure,
mediation, conciliation, arbitration (a process of resolving disputes other than by agreement),
judicial settlement (including specialised tribunals).

WHY DO STATES OBEY INTERNATIONAL LAW?

Even though international law does not have the coercive enforcement processes available to
domestic law, it is in the interests of most States to ensure stability and predictability in their
relations with other States. By complying with their obligations, they help to ensure that other
States comply with theirs. Aside from this mutual benefit, it is in every State’s interests to abide
by the rule of law applying to areas such as use of the sea and ocean resources and environmental
protection.

In a field like human rights, States may uphold international law principles, even where there is no
direct national interest, because they recognise the need to protect common and universal human
values.

SUBJECTS OF INTERNATIONAL LAW

A subject of international law (also called an international legal person) is a body or entity
recognised or accepted as being capable of exercising international rights and duties.

The main features of a subject of international law are: the ability to access international tribunals
to claim or act on rights conferred by international law; the ability to implement some or all of the
obligations imposed by international law; and to have the power to make agreements, such as
treaties, binding in international law; to enjoy some or all of the immunities from the jurisdiction
of the domestic courts of other States.

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Although this is a somewhat circular definition, there are at least two definite examples of subjects
of international law, namely, States and international organisations.

While States are the main subjects of international law, and have all of these capacities, there are
other subjects of international law. Their legal personality, their obligations and rights need not be
the same as a State. For instance, the International Court of Justice has recognised some
international organisations as proper subjects of international law.

THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW

By the principles that govern international law, states are committed towards respecting the treaties
that they establish and also to determine their application by their own legal, executive and judicial
institutions. Yet international law doesn’t rule on how the conditions in which legal provisions
included in treaties are to be integrated in the states’ internal legal system, so as they might be
applied by the competent authorities. This matter of concern is left for the states to decide upon,
ruling over it as sovereignties, and concordant with their views on the relation between
international and internal law.

There are two basic theories regarding the relationship between international and domestic law.
The first theory, monism, posits that there is no distinction between the two. The monist view is
simply that international law and domestic law are part of the same legal system and that domestic
courts may, whenever necessary, draw upon international law as a rule of decision. The second
theory, dualism, posits that international law and domestic law exist in two separate spheres and
that the relationship between the two spheres is mediated by domestic actors. In a dualist system,
domestic actors may choose to incorporate elements of international law into domestic law, but
they are likewise free to reject those elements if they so choose.

Monism

In this theory, all law is part of a universal legal order and regulates the conduct of the individual
State. The difference in the international sphere is that the consequences are generally attributed
to the State. Since all law is part of the same legal order, international law is automatically
incorporated into the domestic legal order. Some monist theorists consider that international law
prevails over domestic law if they are in conflict; others, that conflicting domestic law has some
operation within the domestic legal system.

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Monists assume that the internal and international legal systems form a unity. Both national legal
rules and international rules that a state has accepted, for example by way of a treaty, determine
whether actions are legal or illegal. In most monist states, a distinction between international law
in the form of treaties, and other international law, e.g. jus cogens is made. International law does
not need to be translated into national law. The act of ratifying the international law immediately
incorporates the law into national law. International law can be directly applied by a national judge,
and can be directly invoked by citizens, just as if it were national law. A judge can declare a
national rule invalid if it contradicts international rules because, in some states, the latter have
priority. In other states, like in Germany, treaties have the same effect as legislation, and by the
principle of lex posterior, only take precedence over national legislation enacted prior to their
ratification. In its most pure form, monism dictates that national law that contradicts international
law is null and void, even if it predates international law, and even if it is the constitution. It
maintains that the subject of the two systems of law namely, International Law and Municipal Law
are essentially one in as much as the former regulates the conduct of States, while the latter of
individuals. According to this view law is essentially a command binding upon the subjects of the
law independent of their will which is one case is the States and in the other individuals. According
to it International Law and Municipal Law are two phases of one and the same thing. The former
although directly addressed to the States as corporate bodies is as well applicable to individuals
for States are only groups of individuals.

The starting point of the monist theory, sustained by Decenciere- Ferrandiere, and temporarily by
A. Verdoss, is represented by the state sovereignty, as an absolute dogma. In face it is the state’s
will that supremely established the relations with the other states. If the international law coereces
the state, it happens because the state has agreed to limit its sovereignity: the state’s self-imposed
limitation by its freely complied will to take part in treaties and by the freely acceptance of the
customary international law.

This theory, which turns the international law into a simple ‘foreign state law’ cannot be backed
because if pushed to the extreme it represents the denial of international law itself, to which the
states are not obliged to comply. G.Jellineck confirms this fact in his famous statement: ‘ the
international law exists for the states and not the states for international law’.

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The monist with its priority for international and European Union law is the predominant theory.
It presumes the unity of juridical order with the priority of international law. There are more
alternatives but roughly, two schools share this doctrine: the Normative School and the
Sociological School.

A special place is reserved for the community school, which believes that the community law has
got grounds, developed and gained its self-sufficiency.

Dualism

This theory holds that international law and domestic law are separate bodies of law, operating
independently of each other. Under dualism, rules and principles of international law cannot
operate directly in domestic law, and must be transformed or incorporated into domestic law before
they can affect individual rights and obligations. The main differences between international and
domestic law are thought to be the sources of law, its subjects, and subject matter. International
law derives from the collective will of States, its subjects are the States themselves, and its subject
matter is the relations between States. Domestic law derives from the will of the sovereign or the
State, its subjects are the individuals within the State, and its subject matter is the relations of
individuals with each other and with government.5

Dualists emphasize the difference between national and international law, and require the
translation of the latter into the former. Without this translation, international law does not exist as
law. International law has to be national law as well, or it is no law at all. If a state accepts a treaty
but does not adapt its national law in order to conform to the treaty or does not create a national
law explicitly incorporating the treaty, then it violates international law. But one cannot claim that
the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it.
National laws that contradict it remain in force. According to dualists, national judges never apply
international law, only international law that has been translated into national law. According to
the dualist view the systems of International Law and Municipal Law are separate and self-
contained to the extent to which rules of the one are not expressly or tacitly received into the other
system. In the first place they differ as regards their sources. The sources of Municipal Law are

5
Brindusa Marian, The dualist and monist theories, international law’s comprehension of these theories pg no 4,
available at http://revcurentjur.ro/arhiva/attachments_200712/recjurid071_22F.pdf

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customs grown up within the boundaries of the State concerned and statutes enacted therein while
the sources of International Law are customs grown up within the Family of Nations and law
making treaties concluded by its members. In the second place Municipal Laws regulates relations
between the individuals under the sway of a State or between the individuals and the State while
International Law regulates relations between the member States of the Family of Nations. Lastly
there is a difference with regard to the substance of the law in as much as Municipal Law is a law
of the sovereign over individuals while International Law is a law between sovereign State which
is arrived at an agreement among them. The latter is therefore a weak law.

The dualist or pluralist vies on the relationship between internal and international law was
presented by H. Triepel, in a more rigorous form in his textbook “Volkerrecht und landrecht”, and
in its flexible form by many authors, including D. Anzilotti in “ Cours de droit international”, M.
Virally, L. Oppenheim.

Proponents of dualism consider that between internal and international provisions there cannot
exist any kind of conflicts since these provisions don’t have the same object- internal provisions
are applied exclusively between the State’s borders, and cannot intervene in the international legal
system.

In such conditions a perfect international treaty would only be effective at an international level.
For it to be applied in a contracting state it is necessary for that state to adopt the legal measures
from the treaty into a national provision or to introduce it through a legal plan that facilitates
admission. In both ways we are confronted with a nationalisation of the treaty, the international
provision passing through a transformation, which allows it to be applied as an internal regulation,
part of internal and not international law.

Also the subjects of Law can’t be the same in both legal systems. Each system’s application is well
determined: one corresponds to relationships between states while the other to interpersonal
relationships. International law cannot rule over the relationships between individuals at an internal
level.

The dualist theory teaches that internal and international law are two separate legal systems
holding in common international responsibility.

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The two systems are different through their source of law. Internal law originates in the will of the
state itself, while international law is based on the common will of contracting states.

Analysing the dualist theory we reach the following conclusions:

- basis for the mandatory force of internal law provisions is represented by the Constitution,
while the basis for international law is represented by the principle pacta sunt servanda;
- Legal measures in both systems can only be validated at their proper level. Furthermore,
the international law provision can’t influence the internal provision’s validity and vice
versa;
- the provisions included in the two systems must not be concurrent or conflicting;
- Communication between the two systems is possible, but only the specific procedures to
each system must be applied. Thusly the international law provision is introduced in
internal law by an internal provision, recognizing, naturalising and introducing it through
an internal measure and applied as such. Incorporation of the international norm in internal
law changers its nature and recipient. On the other hand, internal law makes reference to
international law, through a system of references and borrowings, the norm being
nationalised and applied as an internal legal provision.

This doctrine, even in its flexible form, developed by M.Virallly- admits that the two orders
are not rigorously separated and they accept each other’s validity. This opinion is especially
notorious due to tis strictness. This strictness owes itself to more than one reason:

1. it’s a historically significant doctrine. It appeared at the end of the 19th century, in a period
in which international law was predominantly inter-state and when the notion of a nation
state was just surfacing. On the other hand today international law is gradually addressing
itself to individuals.
2. From an institutional point of view, internal and international law do intersect, since
international law doesn’t dispose yet of its own specific authorities, it’s still up to the states
institutions to rule and enforce its own rules.

Harmonisation

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Neither monism nor dualism can adequately explain the relationship between international and
domestic law, and alternative theories have developed which regard international law as having a
harmonisation role. If there is a conflict, domestic law is applied within the domestic legal system,
leaving the State responsible at the international level for any breach of its international law
obligations.

Besides dualistic and monistic theories, J. G. Stark makes reference to two other theories namely,
the Transformation Theory and Delegation Theory.

Transformation Theory:

According to this theory it is the transformation of the treaty into national legislation which alone
validates the extension to individuals of the rules set out in international agreements. The
transformation is not merely a formal but a substantial requirement. International Law according
to this theory cannot find place in the national or Municipal Law unless the latter allows its
machinery to be used for that purpose.

This theory is fallacious in several respects. In the first place its premise that International Law
and Municipal Law are two distinct systems is incorrect. In the second place the second premise
that International Law binds States only whereas municipal law applies to individuals is also
incorrect for International Law is the sum of the rules which have been accepted by civilized states
as determining their conduct towards each other and towards each other’s subjects. In the third
place the theory regards the transformation of treaties into national law for their enforcement. This
is not true in all cases for the practice of transforming treaties into national legislation is not
uniform in all the countries. And this is certainly not true in the case of law making treaties.

Delegation Theory

According to this theory there is the delegation of a right to every State to decide for itself when
the provisions of a treaty or convention are to come into effect and in what manner they are to be
incorporated in the law of the land or municipal law. There is no need of transformation of a treaty
into national law but the act is merely an extension of one single act. The delegation theory is
incomplete for it does not satisfactorily meet the main argument of the transformation theory. It

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assumes the primacy of international legal order but fails to explain the relations existing between
municipal and international laws.

It is settled by the leading English and American decisions that International Law forms part of
the municipal law of those countries. The United States has unambiguously applied the doctrine
that International Law is part of the law of the land. All international conventions ratified by the
USA and such customary International Law as has received the assent of the United States are
binding upon American Courts even if they may be contrary to the statutory provisions. There is
a presumption in cases of conflict that the United States Congress did not intend to overrule
International Law.

POSITION OF INTERNATIONAL LAW WITH THE CONSTITUTION FRAMEWORK

OF INDIA

Before exploring the issue of application of international legal norms in the Indian context, a brief
overview of the Constitutional scheme would be useful. The drafters of the Indian Constitution
have been extremely vague in defining the status of international law in the municipal sphere.6Our
Constitution provides little guidance as to the relationship between international law and municipal
law. This ambiguity looms large in the absence of any debate in the Constitutional Assembly on
the subject and the studied silence of Constitutional pundits.

The primary issue is whether our Constitution makes a mere textual disposition of the relationship
of International Law and Municipal Law. Apart from the express provisions of the Constitution,
we also need to rely on actual State practice.7Article 51(C)8 (which falls within the realm of the
Directive Principles that are non-justiciable in character) of the Constitution specifically mentions
International Law and imposes a duty on the state to respect it. But the jurisdiction of the court to

6
See generally, B.S. Rao. The Framing of Indian Constitution Select Documents, (1967). See also, Malcolm N.
Shaw, International Law, 122 (1997).
7
Agarwala S.K., India s Contribution to the Development of International Law The Role of Indian Courts, R.P.
Anand (Ed.); Asian States and the Development of International Law 72 (1972).
8
Article 51 of the Constitution corresponds to (I) Article 29 of the Constitution of Eire, 1937; (II) Article 28,29,30
of the USSR, 1977 and (III) Article VI Cl. (2) of the Constitution of the United States. Apart from this it has close
similarity to some of the International Charters and Covenants such as (a) Article 28, 29 of the Universal
Declaration of the human Rights, 1948; (II) Articles 1 and 2 of the International Covenant on Economic, Economic,
Social and Cultural Rights 1966; And (III) Articles 1, 4 and 22 of the International Covenant Civil and Political
Rights, 1966.

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enforce them in the domestic arena has been limited by virtue of Article 37.9 In this backdrop, it
is interesting to take note of 'The Regulating Act of 1873', which directed all Courts in India to act
in accordance with "equity, justice and good conscience". On the basis of this principle, Common
Law rules were transplanted into the Indian Municipal Law.10 It seems that India has barely
deviated from its preconstitutional position in the matters of basic canons governing the principles
of International law and Municipal Law.11

It is a well-established principle that constitutional conventions may also breathe through

legislative or constitutional enactments;12 Therefore common law rules automatically becomes
unwritten Constitutional law of a supplementary character. It is an important principle of
Constitutional interpretation that every provision of the Constitution must be given effect
to.13Therefore, these rules continue to be in force in the Indian legal setting by virtue of Article
225 and 3714of the Constitution of India. These provisions are based on the universally recognised
principle that law once established, continues until changed by some competent legislative power.
15
It is not changed merely by change in sovereignty. The Indian Independence Act, 1947 also
incorporated the same principles under section 18(3). Therefore such practices will be of binding
nature in International Law as well as in the Municipal sphere.16Hence under Article 372 of the
Constitution such practices will have the force of law and India will be bound to observe the same.
A composite reading of the Articles 51(c), 253 and 372 suggest that India has not deviated from

9
See generally, H.M. Seervai, The Position of Indian Judiciary under the Constitution of India. 53 (1978).
10
See, T.S. Rama Rao, Some of the Problems of the International Law in India, 6 Indian Yearbook of International
Affairs 3 (1957).
11
Ibid. It is important to note here that India has observed the rule of diplomatic immunity in the International law
despite there being no legislative enactment in this respect.
12
Supreme Court on Record Advocate Association v. Union of India, (1993) 4 SCC 441 1993 Indlaw SC 494.
13
See generally, A. Mason, Trends in Constitutional Interpretation, 18 University of New South Wales Law Journal
237 (1995); T. Sandalow, Constitutional Interpretation, 79 Mich. L.J. 1033 (1981); see also M.V. Tushnet,
Constitutional Interpretation, 96 Harv. L. Rev. 781 (1983).
14
Article 372 of the Constitution provides expressly that all the law in force in India before the commencement of
the Constitution shall continue in force until altered, repealed or amended. This provision also applies to the
common law. See, Durga Das Basu, A Commentary on the Constitution of India, Vol. II , 328330 (1962).
15
See, O'Conell, Supra, n.21, pp. 211212.
16
The Report of the Commission on the Succession of States with respect to Treaties to General Assembly,
Y.B.I.L.C. (1974II) 1; State Succession in Respect of Law Making Treaties, 29 Brit.Y.B.Int'I.L., 105(1952), at pp.
105,108111;Mervyn Jones, State succession in
the matter of Treaties, 24 Brit.Y.B.Int'I L. 25 (1985), at p.29; A.P. Weston, State succession to Treaties in common
Realities, 12 Int'l. & Comp.L.Q., 478 (1963), at p.480; O'Connel, Independence and Succession to treaties, 38
Brit.Y.B.Int'I.L., 84 (1972) at p.87; R.Mullesworan, The Continuity and Succession of states by reference to the
former USSR and Yugoslavia, 48 Int'l & Comp L.Q 473 (1993), at p.475.

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the common law position.17Therefore, India will have the same legal practice of treating customary
International Law as part of the law of the land provided that it is not inconsistent with the existing
statutory provisions and the national charter.

Regarding treaties they have to be transformed into enabling legislation. In the Indian context, the
ratification of a treaty doesn't ipso facto transform it into domestic law. The nonobstante clause
under Article 253 of the Constitution bestows on the Parliament exclusive competence to legislate
upon the treaties entered into by the Government of India.18

However, Dr. P.C. Rao aptly cautions19that by virtue of Article 73, "The executive power extends
to all transactions which bring the Union into the relation with any foreign country or other
international person". Accordingly, when there is a controlling executive; recourse cannot be had
to principles of Customary International Law. Nor can such principles override the case law.

Not only that Supreme Court of India has held in several cases such as Vishakha vs State of
Rajasthan, Randhir vs Union of India, Unnikrishnan vs State of Karnataka, that domestic laws of
India, including the constitution are not to be read as derogatory to International law. An effort
must be made to read the domestic law as being in harmony with the international law in case of
any ambiguity. At the same time, the constitution is still the supreme law of the land and in case
of any directly conflict the constitution will prevail.

The above inspection of the Constitutional provisions amply clarifies the status of international
law in the domestic field.

Conclusion

There are mainly two theories- monistic and dualistic which are used to study the relationship
between the internal and international law. Monistic theory is based on natural law which suggests
that internal law as well as international law is a part of the same law and there is no need for
seperartion between them. But the dualistic theory which is based on positive law says that
domestic law and international law are separate entities. The nation state need not obey
international law unless it accepts to do so. Though both theories has its own place in international

17
See, C. H. Alexander, The International Law in India, 1 Int'I & Compo. L.Q. 289 (1952).
18
Under Article 73 read with 253 and entries 14 of the List I of the Seventh Schedule, Government of India has only
treaty making power and to legislate upon the same.
19
P.C. Rao, The Indian Constitution and International Law, 184 (1993).

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law, few countries in this world follow pure dualism or monism. The countries follow international
law when it is in their favour and do not follow when it is not. This what we can see in the
international scenario.

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