Theories relating International Law and Municipal Law

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HomeBrud.gifInternational LawBrud.gifTheories relating International Law and Municipal Law

International Law and Municipal Law are two separate legal orders existing independently. An internal law cannot become an International Law. However, an International Law can become an Internal (Municipal) Law.

Few theories that relate the two laws are:

Contents

Monistic Theory

  • 18th Century theory proposed by Moser and Martens
  • This theory says only one set of legal system, the doctrine of legal order, shall exist
  • Man is the root of all the laws
  • International and Municipal are two branches of a single tree serving the needs of human community in one way or the other
  • Both laws emanate from a unified knowledge of law. They are species of the same genus - law
  • Both laws are applicable on human. Municipal law directly and international law indirectly through States
  • Neither of them is a system nor are they separate from the system
  • Supporters of this theory include: Wright, Kelsen, Duguit etc.

Dualistic Theory

  • Also called Pluristic Theory
  • Says both the laws are separate and different
  • Individual is the subject of Municipal Law. State is the subject of International Law
  • Municipal Law is the result of will of people of the state. International Law is the result of the common will of all the States.
  • Municipal Law differs from one State to another. International Law is common and similar to all the States
  • Supporters of this theory include: Anzilloti, Oppenheim, Triepel etc.
  • Difference is studies based:
    • Regarding Source
    • Regarding Subject
    • Regarding Substance of Law
    • Regarding Principles
    • Regarding Dynamism of the Subject-Matter
  • Disadvantages:
    • Seeing International Law and Municipal Law as separate would mean that International Law cannot be a part of Municipal Law => It cannot be operated as law of land unless specifically transformed.
      • This is incorrect because internationally recognized fundamental rights are applicable even in municipal law even if state does not like it
    • It is incorrect to say that international law regulates the relationship between states.
    • pacta sunt servanda is an important principle in International law but it is not solely relied on it

Specific Adoption Theory

Transformational Theory

  • International Law undergoes transformation as it spreads universally. Unless transformed, it cannot be applied to Municipal Law.

Delegation Theory

  • International Law delegates the rule-making power to each State accordance with the procedure and system prevailing in each state in accordance with the Constitution and Rules of the Treaty or Convention that member states sign and agree upon.

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