Assignment of international law

Submitted by: Aqsa Hafeez

Topic : Critically evaluate to what extent municipal sphere apply

Municipal law governs the domestic aspects of government and deals with issues
between individuals, and between individuals and administrative apparatus while
international law focuses primarily upon relations between states.
Relationship between municipal and international law:
International law operates only at international level and not within domestic legal
system, whereas municipal law is the national law of country. But to what extent
states follow international law in its municipal sphere? There are many theories
related to this question;
Monism:
Monism considers international law and municipal law are from the same part of
legal order. It emphasizes the supremacy of international law over the municipal
law even in the national jurisdiction.
State practice:
In pure monism state, international law does not need to be translated into
national law. It is simply incorporated and has effect automatically national or
domestic laws. The act of ratifying an international treaty immediately
incorporated the law into national law; and customary international law is treated
as part of national law as well. Monist states are states in which some treaties have
the status of law in the domestic legal
System, even in the absence of implementing legislation. In most monist states,
there are some treaties that require implementing legislation and others that do
not. There is substantial variation among monist states as to which treaties require
implementing legislation. Moreover, monist states differ considerably in terms of
the hierarchical rank of treaties within the domestic legal order. Despite these
variations, all monist states have one common feature: at least some treaties have
the status of law within the domestic legal order.
Example :
France is a monist state, meaning international law and internal law are part
of one integrating system. Therefore, international law becomes part of the national
law as soon as the former is ratified.

Dualism:
For States with a “dualist system”, international law is not directly applicable
domestically. It must first be translated into national legislation before it can be
applied by the national courts. Dualists emphasize the difference between national
and international law and require the transposition of the latter into the former.
Without this translation, international law does not exist as laws.
State practice:
Dualist states are states in which no treaties have the status of law in the
domestic legal system; all treaties require implementing legislation to have
domestic.
Example:
India follows the principle of dualism (that is, international law is not
directly applicable domestically, and must be implemented through a law by
Parliament).
India is a party to more than one hundred and sixty treaties and conventions
dealing with various fields of law like air law, space law and maritime law. The
Government is responsible for implementation of the international treaties and
agreements to which India is a party. The Legal & Treaties Division was
established in the Ministry of External Affairs in 1957 as a nodal point to deal with
all aspects of international law advice to the Government of India .It advises the
Ministry of External Affairs in particular and other Ministries and Departments on
issues pertaining to international law and treaty, including treaty negotiations,
practice and interpretations.

Germinating from these two prominent views, two other theories also came into
existence.
Transformation or specific adoption theory:
It is based on the dualist concept. This theory says that, no rules of international
law, by its own force, can claim to be applied by municipal courts, unless they
undergo the process of transformation.
The protagonists of specific adoption theory put forward the view that the
rules of international law cannot directly be applied within the municipal sphere by
state courts or otherwise. In order to be so applied such rules must undergo a
process of specific adoption by, or specific incorporation into municipal law.
State practice:
India, it may be said, follows this approach. In Jolly George Varghese v.
Bank of Cochin, the court, while dealing with the ICCPR held that until the
municipal law of the country is changed to accommodate the Convention, court is
bound by existing municipal laws

Delegation theory:
The theory is put forward in reply to incorporation or transformation theory.
According to this theory each state delegated the right to determine when and in
what manner the provisions of a treaty will come into force in its domain. There is
no transformation, there is no fresh creation of new municipal rules but the
prolongation of a single act of creation.
State practice:
Under Article 29 of its Constitution Ireland "accepts the generally
recognized principles of International law as its rules of conduct in its relations
with other states". Similarly Article 1 0 of the Italian Constitution declares that the
Italian juridical system conforms to the generally recognized principles of
international law.
 All these theories made it clear that according to the theory adopted by state, it
apply international law in its municipal sphere.

Conclusion:
There is no uniform practice concerning the application of treaties within the
municipal sphere. Each country has its own particularities as regards promulgation
or publication of treaties, legislative approval of treaty provisions and so on.
 Like in British practice, there is dualist approach treaties should be ratified
by legislature.
 In American practice, if the treaty is self executing not required to ratify
from legislation then apply in municipal sphere but if it is not self executing
then it must ratified through legislature.
The countries follow international law when it is in their favor and do not follow
when it is not. This is what we can see in the international scenario.