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Name – Praveen Kumar Yadav
Enroll. No. – 04113403818
Class – 3rd A
INTERNATIONAL LAW
L. OPPENHEIM defines International Law as,
"Law of Nation or International Law is the
name for the body of customary and
conventional rules which are considered
legally binding by civilized states in their
relation with each other, within a
community which by common consent of
this community shall be enforced by
external power".
INTERNATIONAL LAW
Public International Law has been defined by
J.G. Starke as "that body of Law which is
composed for its greater part of the
principles and rules of conduct which
states feel themselves bound to observe,
and therefore, do commonly observe in
their relations with each other."
INTERNATIONAL LAW
According to the Black’s Law Dictionary
“International Law” is defined as:
"The legal system governing the
relationship between nations; more
modernly the Law of International
relations, embracing not only nations but
also such participants as International
organizations and individuals (such as
those who invoke their human rights or
commit war crimes)".
MUNICIPAL LAW
The Black’s Law Dictionary, defines the
term “Municipal Law” as:
"The ordinances and other laws applicable
within a city, town or other local
government entity".
Thus Municipal Law is the acts made by
the legislature or the Law making authority
of a state, applicable to that state alone.
INTERNATIONAL LAW AND
MUNICIPAL LAW
 International Law
is largely but not
altogether
concerned with
relation among
states;
 Whereas
Municipal Law
controls relations
between
individuals within
a state and
between
individuals and
the state.
INTERNATIONAL LAW AND MUNICIPAL
LAW REGARD TO THE RELATIONS THEY
REGULATE.
 International Law,
on the other hand,
regulates relations
between the
member States of
the Family of
Nations.
 Municipal Law
regulates relations
between the
individuals under
the sway of the
respective State
and the relations
between this State
and the respective
individuals.
INTERNATIONAL LAW AND MUNICIPAL LAW
WITH REGARD TO THE SUBSTANCE OF THEIR
LAW
 Law of Nations
is a Law not
above, but
between
Sovereign
States.
 Whereas
Municipal Law
is a Law of a
Sovereign over
individuals
subjected to his
way.
MONISM
 Monists hold that International Law and State
Law share a common origin-namely Law.
 The scholars and followers of this theory is
called Monists.
 According to Monism, International Law is
directly applicable in the National legal order.
There is no need for any Municipal
implementing legislation; International Law is
immediately applicable within National legal
systems unlike Dualism, without any
incorporation or transformation.
 Monistic I Theory was developed by German
scholars namely Moser, Hegel, Bergbohm, Zorn,
Wenzel in late 18th and early 19th centuries.
 Monism I is of ideology that though both
International and Municipal laws are laws and are
applicable, Municipal Law principle are
somewhat superior when compared to
International Law.
 There exist only one set of legal system or the
doctrine of legal order and 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 and are the species of
same genus-Law.
DUALISM
 Dualism theory was developed by a German scholar
Triepel and an Italian scholar Anzilotti.
 The important principle of Dualism is that, International
Law and Municipal Law are two separate and distinct
orders, in their objects and spheres of operation, such that
the norms of one would not operate within the realm of
the other without a positive act of reception or
transformation, as the case may be.
 The International Law and Municipal Law are two
entirely different things and the International Law can
never be applied in the state without incorporating or
transforming it into Municipal Law.
 In Dualism, at no circumstances, the International Law
can prevail over the Municipal Law, and it is the
Municipal Law which is always supreme.
 The subject of the Municipal Law is primarily
individuals and groups, and that of International
Law is states.
 The Sources of Municipal laws are
parliamentary enactments and courts decision,
and for International it is treaties, customs and
general principles of Law recognised by the
civilized nations.
 The main function of Municipal Law is
regulating internal functioning of the state,
relation between the state and the individual,
and function of International Law is to
supervise the relations between states.
DIFFERENCES BETWEEN
MONISM AND DUALISM
 In philosophical terms, monism is that talks of oneness of the
soul and dualism is that talks of two entities, individual and
supreme soul.
 When monism speaks of the oneness of existence, the term
dualism does not endorse this view.
 Monism believes in the fusing of the self into supreme self. On
the contrary, the term dualism does not believe that the
individual self unites with the supreme self.
 In International Law, monism believes that International and
National legal systems can become a unity. Dualism states that
there is a difference between internal and International Law.
 There is no need for translating the International Law into a
National Law in a monist state. Unlike monism, there is a need
for the translation of International Law into National Law.
Unless the translation takes place, the International Law is not
accepted.
CRITICISMS OF MONISM
AND DUALISM
 The criticism of Monistic Theory I is that, it is
devoid of scientific value and intended to underpin
ideological and political positions.
 The criticism of Monistic Theory II is that, it is
nice in theory, but really utopian and did not reflect
reality. But it had important psychological impact
and helped to introduce idea of responsibility of
state officials as individuals.
 The criticism of Dualistic Theory is that, it did
reflect legal reality of 19th and 20th century, but
couldn’t explain some things, like the fact that
some int’l rules do impose obligations on
individuals (e.g. piracy).
TRANSFORMATION
THEORY
 International Law undergoes transformation as it spreads
universally. Unless transformed, it cannot be applied to
Municipal Law. States incorporate treaties and norms into
their Municipal laws by specific "transformational"
devices.
 The automatic incorporation of ratified treaties by
constitutional provision, which has been called general
transformation, mandates Municipal enforcement without
legislative action beyond ratification.
 This theory is also called as the Automatic standing
incorporation of International rules. In this theory, such
incorporation occurs if National constitution / Law says
that all state officials as well as National and other
individuals living in the territory of the state are bound to
apply certain present or future International Law.
Filartiga v. Pena Irala
 The case of Filartiga v. Pena Irala, heralded a trend
towards the Municipal incorporation of customary
International Law. The Filartiga court recognized that the
Law of nations is a dynamic concept, which should be
construed in accordance with the current customs and
usages of civilized nations, as articulated by jurists and
commentators. It held specifically that U.S. Law directly
incorporated customary International Law principles
prohibiting deliberate government torture. Moreover, in
the most controversial aspect of its opinion,
the Filartiga court held that an old rarely invoked federal
jurisdictional statute, the Alien Tort Statute, created an
implied right of action for violations of customary
International Law.
Paquete Habana Case
 In Paquete Habana, the Court reaffirmed the
Municipal status of customary International
Law in the United States. Relying on scholarly
sources, the Court acknowledged a long-held
customary norm against seizing the coastal
fishing vessels of a belligerent. The court held
that International Law is part of the United
States Law, and must be ascertained and
administered and administered by the courts of
justice of appropriate jurisdiction as often as
questions of right depending upon it are duly
presented for their determination.
Relation b/w international law and Muncipal law

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Relation b/w international law and Muncipal law

  • 1. Name – Praveen Kumar Yadav Enroll. No. – 04113403818 Class – 3rd A
  • 2. INTERNATIONAL LAW L. OPPENHEIM defines International Law as, "Law of Nation or International Law is the name for the body of customary and conventional rules which are considered legally binding by civilized states in their relation with each other, within a community which by common consent of this community shall be enforced by external power".
  • 3. INTERNATIONAL LAW Public International Law has been defined by J.G. Starke as "that body of Law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other."
  • 4. INTERNATIONAL LAW According to the Black’s Law Dictionary “International Law” is defined as: "The legal system governing the relationship between nations; more modernly the Law of International relations, embracing not only nations but also such participants as International organizations and individuals (such as those who invoke their human rights or commit war crimes)".
  • 5. MUNICIPAL LAW The Black’s Law Dictionary, defines the term “Municipal Law” as: "The ordinances and other laws applicable within a city, town or other local government entity". Thus Municipal Law is the acts made by the legislature or the Law making authority of a state, applicable to that state alone.
  • 6. INTERNATIONAL LAW AND MUNICIPAL LAW  International Law is largely but not altogether concerned with relation among states;  Whereas Municipal Law controls relations between individuals within a state and between individuals and the state.
  • 7. INTERNATIONAL LAW AND MUNICIPAL LAW REGARD TO THE RELATIONS THEY REGULATE.  International Law, on the other hand, regulates relations between the member States of the Family of Nations.  Municipal Law regulates relations between the individuals under the sway of the respective State and the relations between this State and the respective individuals.
  • 8. INTERNATIONAL LAW AND MUNICIPAL LAW WITH REGARD TO THE SUBSTANCE OF THEIR LAW  Law of Nations is a Law not above, but between Sovereign States.  Whereas Municipal Law is a Law of a Sovereign over individuals subjected to his way.
  • 9. MONISM  Monists hold that International Law and State Law share a common origin-namely Law.  The scholars and followers of this theory is called Monists.  According to Monism, International Law is directly applicable in the National legal order. There is no need for any Municipal implementing legislation; International Law is immediately applicable within National legal systems unlike Dualism, without any incorporation or transformation.
  • 10.  Monistic I Theory was developed by German scholars namely Moser, Hegel, Bergbohm, Zorn, Wenzel in late 18th and early 19th centuries.  Monism I is of ideology that though both International and Municipal laws are laws and are applicable, Municipal Law principle are somewhat superior when compared to International Law.  There exist only one set of legal system or the doctrine of legal order and 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 and are the species of same genus-Law.
  • 11. DUALISM  Dualism theory was developed by a German scholar Triepel and an Italian scholar Anzilotti.  The important principle of Dualism is that, International Law and Municipal Law are two separate and distinct orders, in their objects and spheres of operation, such that the norms of one would not operate within the realm of the other without a positive act of reception or transformation, as the case may be.  The International Law and Municipal Law are two entirely different things and the International Law can never be applied in the state without incorporating or transforming it into Municipal Law.  In Dualism, at no circumstances, the International Law can prevail over the Municipal Law, and it is the Municipal Law which is always supreme.
  • 12.  The subject of the Municipal Law is primarily individuals and groups, and that of International Law is states.  The Sources of Municipal laws are parliamentary enactments and courts decision, and for International it is treaties, customs and general principles of Law recognised by the civilized nations.  The main function of Municipal Law is regulating internal functioning of the state, relation between the state and the individual, and function of International Law is to supervise the relations between states.
  • 13. DIFFERENCES BETWEEN MONISM AND DUALISM  In philosophical terms, monism is that talks of oneness of the soul and dualism is that talks of two entities, individual and supreme soul.  When monism speaks of the oneness of existence, the term dualism does not endorse this view.  Monism believes in the fusing of the self into supreme self. On the contrary, the term dualism does not believe that the individual self unites with the supreme self.  In International Law, monism believes that International and National legal systems can become a unity. Dualism states that there is a difference between internal and International Law.  There is no need for translating the International Law into a National Law in a monist state. Unlike monism, there is a need for the translation of International Law into National Law. Unless the translation takes place, the International Law is not accepted.
  • 14. CRITICISMS OF MONISM AND DUALISM  The criticism of Monistic Theory I is that, it is devoid of scientific value and intended to underpin ideological and political positions.  The criticism of Monistic Theory II is that, it is nice in theory, but really utopian and did not reflect reality. But it had important psychological impact and helped to introduce idea of responsibility of state officials as individuals.  The criticism of Dualistic Theory is that, it did reflect legal reality of 19th and 20th century, but couldn’t explain some things, like the fact that some int’l rules do impose obligations on individuals (e.g. piracy).
  • 15. TRANSFORMATION THEORY  International Law undergoes transformation as it spreads universally. Unless transformed, it cannot be applied to Municipal Law. States incorporate treaties and norms into their Municipal laws by specific "transformational" devices.  The automatic incorporation of ratified treaties by constitutional provision, which has been called general transformation, mandates Municipal enforcement without legislative action beyond ratification.  This theory is also called as the Automatic standing incorporation of International rules. In this theory, such incorporation occurs if National constitution / Law says that all state officials as well as National and other individuals living in the territory of the state are bound to apply certain present or future International Law.
  • 16. Filartiga v. Pena Irala  The case of Filartiga v. Pena Irala, heralded a trend towards the Municipal incorporation of customary International Law. The Filartiga court recognized that the Law of nations is a dynamic concept, which should be construed in accordance with the current customs and usages of civilized nations, as articulated by jurists and commentators. It held specifically that U.S. Law directly incorporated customary International Law principles prohibiting deliberate government torture. Moreover, in the most controversial aspect of its opinion, the Filartiga court held that an old rarely invoked federal jurisdictional statute, the Alien Tort Statute, created an implied right of action for violations of customary International Law.
  • 17. Paquete Habana Case  In Paquete Habana, the Court reaffirmed the Municipal status of customary International Law in the United States. Relying on scholarly sources, the Court acknowledged a long-held customary norm against seizing the coastal fishing vessels of a belligerent. The court held that International Law is part of the United States Law, and must be ascertained and administered and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.