In generally it is Notionally accepted that the state Municipal Law control the conduct of individual within the state will in international law controls the relation of nations. but now this concept has changed now the scope of international law has increased and it not only determines and control the relation of state but also the relation of a member of the international community. Now international law is applicable not only on states but also an International Institute individual and Non-States unities both laws have cohesion with each other. The relation between these two or more prominent. The theories which establish a relation to each other are as following:
- Monistic Theory
- Dualistic Theory
- Theory of Transformation
- Theory of Delegation
- Theory of Specific adoption
Monistic Theory under Municipal Law and International Law
It is also called as the monism theory. Mosser and Mortensen are considered as the main proponents of this Theory. According to this Theory, State Municipal law and International law are both parts of such a universal legal system which fulfils the needs of humanity. They are two species of law.
According to this theory, the law is made for individuals the difference is that stays Municipal noise binding directly on individual willing international law is binding through States the opinion of supporters of this principle is that the rule of international law and State Law are related to each other buy one legal system. State Law and international law are two parts of the law which are applicable to the whole human community in one way or other. Conclusively it can be said that the root of all laws is individual. All laws are made for individuals. According to O. Kornell, the objective of all laws is human welfare whether it is municipal law or International laws. According to Starke, International Law as part of states Municipal Law and therefore the decision can be given by the municipal court according to the rules of international law.
It is also called as the dualism theory .according to this theory both statements people law and international law are the separate and self-contained legal system. International Law cannot become part of state Municipal Law until the principle of international law applied under state Municipal Law.
The proponents of this theory also say that the principle of state Municipal Law applies by State Municipal Court while principles of international law applied by International Court and Tribunal. According to Starke, the main foundation of the proponents of the dualistic theory is that state Municipal laws and international law are two different legal systems because the nature of international law is fundamentally different from state Municipal law.
ANGILOTTI has also recognized both the systems as two different legal systems, According to him the fundamental principle of state municipal law in compliance of law enacted by state legislature while the principle of International law is Pacta Sunt Rvanda i.e. to honour the agreements executed between the state.
The main bases of separation of these two systems are as follows:
- The main source of International law is customs and treaties while in case of Municipal law is an enactment by the sovereign power.
- International law controls the relation between state, while state law controls the relations between state and individuals.
- The main cause of compliance of state law is the fear of sanction while the basis of compliance of International law is the moral liability and vested interests of states.
The Theory of Transformation under Municipal Law and International Law
According to the Theory of Transformation, International law and the rules of treaties can be used in the field of domestic Municipal law only, when they are transformed. In other words, it can be said that International law and the rules of treaties can be applied in the field of Municipal law only when they are legally recognized by state law.
But according to Starke, it is the opinion of critics that the rules of International can be applied when they are transformed into domestic law, is not necessary in every case.
The Theory of Delegation under Municipal Law and International Law
The evolution of the Theory of Delegation is the result of criticism of Transformation. The proponents of this theory say that according to the statutory rules of International law, the powers have been delegated to the constitution of different states to ensure that how and to what extent. The treaties are applied in domestic law. It does not result in Transformation and creation of new law. But the reality is that it only results in an increase in one function of domestic law.
Theory of Specific Adoption under Municipal Law and International Law
This Theory is just like the theory of Transformation. The only difference is that this theory says about adoption, not their Transformation. According to this Theory, International law and state Municipal law are different legal systems. Thus International law can not be applied directly in the field of domestic law. For application, it has to be specifically adopted by state domestic law. The Theory of adoption was made applicable in Hague Convention 1970, Viena Convention 1972 Tokyo convention 1975.
Now we consider the use of International law in different countries. In India, Britain, America and Russia, the rules of International law and trade have been applied in different ways:
International law has been given an important place in practice in India. In Article 51, of the Indian Constitution, it has been said that the state shall strive:
- To increase international peace and security,
- To maintain just and goods relation among nations,
- To increase faith and honour for use of International law treaty, the obligation in relation and conduct with each other by organized people,
- To encourage for settlement of international disputes, by a mediator.
The customary rules of International law are part of the Indian law on the basis of clause ( c ).
Similarly, in article 253 of the constitution, it has been said that the parliament is em. Similarly in Articles 245-B of the constitution, it has been said that the parliament is empowered to enact any law, for implementation of any agreement, treaty, convention or conclusion, meet on such determinations made in any organ thereof for the whole of India or any part thereof.
In this regard, the case Shri Kirshna dharma vs state of West Bengal, AIR 1964 is a good illustration. In the case, the Calcutta high court has decided that whenever the court interprets the domestic municipal law, it should be taken into consideration that it does not go against International law.
Similarly in Maganbhai Ishwarbhai Patel vs Union of India, AIR 1969 SC 783, the supreme court accepted implementation of such agreement between India and Pakistan on the basis of correspondence between them.
In Britain, there has been made a difference between international customs and rules of international treaties for applicability of international law in the scope of state law.
In Britain, international customs are treated as part of their domestic law. The British courts apply international customs subject to the following conditions 1. That the international customary rules are not inconsistent with British laws 2. They are accepted by lower courts when the limits of these customary rules are once fixed by the high court.
As far as the treaties are concerned, their Practice depends upon the relations between executive and parliament. There are some treaties, for their applicability, the approval of parliament is necessary.
If there is a contradiction between the provision of treaty and state enacted laws, the parliamentary enacted laws are assigned priority. If any law is not clear and give more than one meaning then the applicability of treaty may be considered whether to use it or not.
For use of treaties, the case of international Tin Council vs Department of trade and industry 1990, is a good illustration. In this case, Lord Council has decided that in England the treaties have not become applicable automatically any International Treaty can become part of English law only when the parliament makes it a part of English law and incorporate by the enactment of the law in this regard.
Practice in America
In America the rule of customary international law is treated as part of state law .it has been said in Paquete Habana case 1900, 175 U.S. 677, that international law is part of our state law and when any question or case relating to international law is filed before quotes of proper powers then the right based on this question should be determined and enforced.
In America, the court interpreted the State Law in such a way that it does not go against international law. AS far as Treaties are concerned they adoption depend upon American constitution according to article 6 of the American constitution the constitution and the law enacted thereunder and international treaties made by America are the supreme laws of America therefore in America International Treaty are treated at par with State Law.
In America, treaties are divided into two types .in the force that such are includes which need not be incorporated into State Law whereas they become applicable automatically The Other types of Treaty do not become applicable automatically but for their application in State Law the Parliament has to make proper law.
Practice in Soviet Russia
In Russia, greater importance is attached to International agreement and treaties hair International customs laws are valid and applicable when approved by the Russian government when there is a contradiction between State Law and international law the international law is given more importance when does happen in case of the constitution is given more importance.