About this topic
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This topic explains how international law and the law inside a country (municipal law) relate to each other: whether they form one legal system or two, which of them prevails when they clash, and how Indian courts actually treat treaties and customary international law.
The courtroom puzzle: A bank holding a money decree asks the court to send its borrowers to civil prison. But India has joined a treaty which says that no one shall be imprisoned merely for being unable to fulfil a contract. The judge therefore has two texts on the desk: an Indian statute, and a treaty that India has accepted internationally. Which should the judge follow?
This situation actually reached the Supreme Court. Its answer is given below under Jolly George Varghese v. Bank of Cochin.
Municipal law and international law: meaning
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Municipal law
In this topic, "municipal law" has nothing to do with the municipal corporation that collects property tax. It means the whole body of law that operates inside one sovereign state.
- The Constitution of India is municipal law.
- The Code of Civil Procedure is also municipal law.
Public international law
Public international law is the law of the international community.
- Its main subjects are states, along with bodies such as the United Nations.
- It fixes the rights and duties of these subjects towards each other.
- Modern international law also gives some rights directly to individuals, most clearly in the field of human rights.
"Municipal law" means the entire internal law of a sovereign state (for example, the Constitution of India and the Code of Civil Procedure), not the law of a municipal corporation.
The two questions every theory answers
Every theory on the relationship between international law and municipal law answers two questions:
- Are the two laws parts of one legal system, or are they two separate systems?
- If they clash inside a country, which one prevails?
Dualism
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Dualism is the answer that an Indian student lives with every day. Its leading supporters were Triepel and Anzilotti.
Dualists say that international law and municipal law are two separate systems. They differ both in whom they govern and in where they come from:
| Point of difference | Municipal law | International law |
|---|---|---|
| Whom it governs | Individuals inside a state | Relations between states |
| Source | The will of one state | The common will of states |
Consequence for treaties
Because the systems are separate, a treaty does not enter national law on its own. Until the legislature makes a law:
- the treaty binds India in its dealings with other states; but
- Indian courts will not enforce it as national law.
Think of a treaty as a foreign traveller at our border. It cannot walk into an Indian courtroom on its own. It needs a visa, and that visa is a law made by the legislature.
Under dualism, a treaty binds the state at the international level, but it is enforced by national courts only after the legislature turns it into national law.
How dualists explain the "visa"
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Dualists explain the need for a domestic law in two ways: the transformation theory and the specific adoption theory.
1. Transformation theory
- A treaty is in the nature of a promise.
- A statute is in the nature of a command.
- A treaty must therefore be transformed into a statute, a command addressed to people, before it becomes part of national law.
A principal promises the district education officer that every student will wear a cycling helmet. That promise binds the principal, but no student is bound until the principal issues a school rule. In the same way, a treaty (the promise) binds the state, but people are bound only by the statute (the command) that transforms it.
2. Specific adoption theory
This theory, favoured by positivist writers, makes the same point more bluntly:
- A rule of international law cannot operate inside a state by its own force.
- The state must specifically adopt it, normally through legislation.
- Courts apply only the rules that the state has adopted.
A waiter can serve only what is printed on the menu, however many recipes the kitchen knows. Courts likewise apply only those rules of international law that the state has adopted.
| Point | Transformation theory | Specific adoption theory |
|---|---|---|
| Core idea | Treaty is a promise; statute is a command; the promise must be transformed into a command | International law cannot operate inside a state by its own force; the state must specifically adopt it |
| Usual method | Transforming the treaty into a statute | Adoption, normally through legislation |
| Illustration | Principal's promise and the school rule | Waiter serving only what is on the menu |
Both the transformation theory and the specific adoption theory demand a domestic act before a rule of international law operates inside the state.
Monism
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Monism gives the opposite answer. "Mono" means one. Monists, most notably Hans Kelsen, say that international law and municipal law are two branches of one single legal order.
- Monism removes the border. A treaty needs no visa, because it was never a foreigner.
- In theory, once the state is bound, a court could apply the treaty directly, and a person could rely on it without any separate enactment.
- In a clash, monists generally place international law higher.
Theory and practice: self-executing treaties
Monist theory must be kept apart from practice. Whether a court actually applies a treaty depends on:
- that country's own constitution; and
- whether the treaty provision is clear and complete enough for a judge to apply.
A treaty provision that is clear and complete enough for a judge to apply is called self-executing.
The United States Constitution calls treaties the supreme law of the land. Yet the American Supreme Court has held that a treaty which is not self-executing needs a law from Congress before courts can enforce it.
Dualism and monism compared
| Point | Dualism | Monism |
|---|---|---|
| Leading supporters | Triepel and Anzilotti | Hans Kelsen |
| Number of systems | Two separate systems | One single legal order with two branches |
| Picture used | A treaty is a foreign traveller who needs a visa (a law made by the legislature) | No border at all; the treaty was never a foreigner |
| Treaty in national courts | Binds the state internationally, but courts will not enforce it as national law until the legislature acts | In theory, a court could apply it directly once the state is bound, and a person could rely on it without separate enactment |
| Explanatory theories | Transformation and specific adoption | Delegation (see below) |
Delegation theory
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An objection to monism: national constitutions often decide how and when a treaty takes effect. Is that not a visa after all?
The delegation theory replies:
- International law itself, through its own constitutional rules, hands each national constitution the job of deciding when a treaty takes effect and in what form it enters national law.
- The national step therefore creates no fresh law.
- It is only the last stage of one law-making process that began at the international level, with international law at the top.
A branch office may fix its own working hours, but only because the head office allowed it. Likewise, a national constitution fixes the procedure for a treaty only because international law delegated that task to it.
Monism removes the border in theory; the delegation theory explains, within monism, why national constitutional procedures still exist without creating fresh law.
India's approach to treaties
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For treaties, India broadly follows dualism, but not every treaty needs an Act. Entering into a treaty is the work of the Union executive. The question of when a treaty needs a law was answered in the Maganbhai case.
Maganbhai Ishwarbhai Patel v. Union of India (1969): An international tribunal had accepted Pakistan's claim to some areas in the Rann of Kutch. The petitioners argued that giving up these areas was a cession of Indian territory, which only a constitutional amendment could allow.
Held: The award merely settled an uncertain boundary and ceded no Indian territory, so the executive could implement it on its own.
Principle: Agreeing with the Chief Justice, Justice J. C. Shah stated the rule. A law is "necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the State." But "If the rights of the citizens or others which are justiciable are not affected, no legislative measure is needed to give effect to the agreement or treaty."
| Situation | Is a law needed to implement the treaty? |
|---|---|
| Treaty restricts the rights of citizens or others | Yes |
| Treaty modifies the laws of the State | Yes |
| Justiciable rights of citizens or others are not affected | No; the executive can give effect to it |
In India, making a treaty is an executive act. A law is needed only when the treaty restricts the rights of citizens or others or modifies the laws of the State (Maganbhai Ishwarbhai Patel v. Union of India, 1969).
Article 253 and Article 51(c)
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Article 253: power to legislate for implementing treaties
When a law is needed, Article 253 of the Constitution provides:
"Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."
The word "notwithstanding" lets Parliament make such a law even on a subject that normally belongs to the States.
Article 51(c): Directive Principle
Alongside Article 253 stands a Directive Principle. Article 51 says: "The State shall endeavour to", and clause (c) reads:
"foster respect for international law and treaty obligations in the dealings of organised peoples with one another".
Article 253 gives Parliament power to make laws, even on State subjects, to implement treaties, agreements, conventions and decisions of international conferences, associations or other bodies. Article 51(c), a Directive Principle, asks the State to endeavour to foster respect for international law and treaty obligations.
Customary international law in India
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Customary international law enters Indian law by a different road from treaties.
Gramophone Company of India Ltd. v. Birendra Bahadur Pandey (1984): A consignment of cassettes from Singapore, meant for a company in Kathmandu, was waiting at Kolkata port to travel on to Nepal. Suspecting pirated copies of its records, Gramophone Company sought to stop them under Section 53 of the Copyright Act, 1957 (as it then stood), which dealt with the import of infringing copies. The other side argued that goods merely passing through to a land-locked country are not imported at all.
Held (speaking through Justice O. Chinnappa Reddy): Rules of international law may be accommodated in our law "even without express legislative sanction provided they do not run into conflict with Acts of Parliament". If they do conflict, national law prevails, because "National courts cannot say yes if Parliament has said no to a principle of international law." Even so, judges must try to read statutes in a way that avoids such a conflict.
On the facts: writers were divided on any customary right of transit, so land-locked states depend on agreements. The transit trade convention of 1965 and the treaties with Nepal themselves permitted measures to protect copyright. So goods in transit were held to be imported.
Principle: A settled rule of customary international law is part of Indian law without legislation, unless it conflicts with an Act of Parliament, in which case the Act prevails.
The rules laid down in the Gramophone case:
- Rules of international law may be accommodated in Indian law even without express legislative sanction.
- This is subject to the condition that they do not conflict with Acts of Parliament.
- In case of conflict, national law prevails.
- Judges must nevertheless try to interpret statutes so as to avoid a conflict with international law.
Treaty and custom in India compared
| Point | Treaty | Customary international law |
|---|---|---|
| Need for an Indian law | Generally needs an Indian law before it binds people (when it restricts rights or modifies the law) | A settled rule is already part of Indian law; no legislation needed |
| Limit | Without a law, courts do not enforce it as national law | Gives way if an Act of Parliament says otherwise |
| Leading authority | Maganbhai Ishwarbhai Patel v. Union of India (1969); Article 253 | Gramophone Company of India Ltd. v. Birendra Bahadur Pandey (1984) |
A treaty generally needs an Indian law before it binds people, but a settled rule of customary international law is already part of Indian law, unless an Act of Parliament says otherwise.
Harmonisation theory
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Both dualism and monism argue about who should win. The harmonisation theory changes the question.
- It gives no crown to either system.
- Both systems are tools serving the same people, so the real task is to make them fit.
- Where they seem to conflict, the judge should read them together on an equal footing, so that neither defeats the other.
A referee declares a winner, while a translator helps two languages understand each other. Dualism and monism make the judge a referee; the harmonisation theory asks the judge to be a translator.
Why harmonisation suits modern law
A human rights covenant is signed by governments, yet the person it protects may be a debtor facing jail or a woman at her desk. When one rule speaks to the state and to the citizen at once:
- a judge who ignores it fails the citizen; and
- a judge who obeys it blindly ignores Parliament.
Translation (harmonisation) avoids both mistakes, as two Indian cases show.
Jolly George Varghese v. Bank of Cochin
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This case answers the courtroom puzzle set out at the beginning.
Jolly George Varghese v. Bank of Cochin (1980): The debtors' properties were already under attachment, yet a warrant was issued for their arrest and detention in civil prison without checking whether they could pay at that time. India had joined the International Covenant on Civil and Political Rights (ICCPR), whose Article 11 says: "No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation."
Held (speaking through Justice V. R. Krishna Iyer): First, the dualist answer. The Covenant did not automatically become enforceable Indian law, and until municipal law is changed to accommodate it, courts are bound by municipal law. Then the Court acted as a translator. It read Section 51 of the Code of Civil Procedure together with Article 21 of the Constitution, in the light of the Covenant. A simple failure to pay is not enough for civil imprisonment. There must be "some element of bad faith beyond mere indifference to pay", or the debtor must have the means to pay now and still refuse. The matter was sent back for a fresh inquiry into the debtors' means.
Principle: The Court said that it had harmonised Section 51 of the Code of Civil Procedure with the Covenant and the Constitution. An unincorporated treaty is not directly enforceable, but courts may read domestic law in its light.
Answer to the courtroom puzzle: the judge does not simply pick the statute or the treaty. Section 51 of the Code of Civil Procedure is read with Article 21 in the light of Article 11 of the ICCPR, so a debtor cannot be sent to civil prison for a mere failure to pay; there must be bad faith beyond mere indifference to pay, or present means to pay coupled with refusal.
Vishaka v. State of Rajasthan
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Vishaka v. State of Rajasthan (1997): No Indian law specifically dealt with sexual harassment at the workplace.
Held: Relying on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Supreme Court held that any international convention not inconsistent with the Fundamental Rights and in harmony with their spirit must be read into them. The Court's guidelines were to bind until suitable legislation was enacted. Parliament later passed a dedicated law in 2013.
Principle: An international convention consistent with Fundamental Rights and in harmony with their spirit can be read into them to fill a gap in domestic law.
In Vishaka, the convention entered Indian law first through interpretation (judicial harmonisation), and later through a "visa" issued by Parliament, the dedicated law of 2013.
The theories at a glance
| Theory | Core idea | Effect on a treaty inside the state |
|---|---|---|
| Dualism (Triepel, Anzilotti) | Two separate systems with different subjects and sources | Needs a "visa": a law made by the legislature |
| Transformation theory | Treaty is a promise; statute is a command | Must be transformed into a statute |
| Specific adoption theory (positivists) | International law cannot operate by its own force | Must be specifically adopted, normally through legislation |
| Monism (Hans Kelsen) | One single legal order; international law generally placed higher | In theory, applies directly; in practice depends on the constitution and on whether it is self-executing |
| Delegation theory | International law delegates to national constitutions the task of deciding when and how a treaty takes effect | National step creates no fresh law; it is the last stage of one law-making process |
| Harmonisation theory | No crown to either system; the judge as translator | Both laws read together on an equal footing so that neither defeats the other |
Quick revision
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- Dualism sees two systems, so a treaty needs a "visa" (a law made by the legislature). This is explained by the transformation and specific adoption theories.
- Monism removes the border in theory, and the delegation theory explains the constitutional procedure.
- Harmonisation makes the judge a translator rather than a referee.
- India asks Parliament for a "visa" when a treaty touches rights or changes the law (Maganbhai; Article 253).
- India treats settled custom as part of its law unless a statute says otherwise (Gramophone Company).
- Indian courts translate (harmonise) wherever the law leaves room (Jolly George Varghese; Vishaka).
