Correlation between IL and ML
IL and ML are two legal
systems. IL governs primarily the relations among the states of the globe. ML
governs the domestic relations between state and individuals. These two legal
systems are inter-related to each other but the relationship between IL and ML
has been the subject of debate for a very long time. There are two different
theories on the relations between these two systems:
i) Dualism/dualist theory
ii) Monism/monist theory
Dualists
see IL and ML as distinct and separate- arising from different sources,
governing different areas and relationships and different in substance.
According to this theory IL is inferior to and weak than ML. These are two
separate legal systems which exist independently of each other. Each of these
two systems regulates different subject matters, functions different levels and
each is dominant in its sphere. IL regulates the conduct of sovereign states
and ML regulates the conduct of individuals within a sovereign state. The ML
has a supremacy over the IL in the case of conflict between IL and ML, a
national court would apply ML.
Monists
argue that there is only one system of law, of which IL and ML are no more than
two aspects. They justify this by claiming that both of them govern sets of
individuals (state being seen for this as collection of individuals), both are
binding and both are manifestations of a single concept of law. Both are based
on the same premise. However, this theory asserts the supremacy of IL over ML,
in the case of conflict between these two laws. IL is superior and stronger, as
it represents the system's highest rules- jurisdiction on a domestic level
being only delegated to states which cannot avoid being bound to apply IL at
the domestic level. So, if ML anywhere conflicts with IL that is the state's
fault and will not excuse to state's obligation.
These two legal systems
should be examined from moderate ground which is called third approach to these
systems. It is somewhat a modification of dualist theory. This is the theory of
coordination, not confrontation like monism and dualism. This theory supposes
that both monism and dualism are the extreme expression of articulating the
relationship between IL and ML which is flawed more or less because they do not
cooperate and conflict. It asserts that the two laws are of two distinct legal
systems, it denies that a common field of operation exists as between IL and ML
by which one system is superior or inferior to the other.
It argues that both
laws are supreme in their own sphere. They are complementary of each other.
Municipal laws are bases of IL and without consideration of norms and rules of
international law no state can formulate and apply its law in practical field.
Therefore they both should be treated in the same way. Each law exists within a
different juridical order. Both legal systems operate in their own domain
without any presumption of conflict or hostility to each other. They both
systems benefit from each other. Both are important and mutually supportive and
interacting with each other in contemporary context in relation to many
trans-boundary issues. For example, state has the primary responsibility for
the implementation of HR, the secondary responsibility lies with international
authority formed under IL. IL is not concerned at all about domestic law unless
a domestic law and act infringes or violates the assumed or assigned
international obligation emanating from IL.
In some areas they both
regulate the same object, eg. legal status of diplomats and consular mission, jurisdiction
of territorial, maritime and air space etc. In such cases, municipal laws are
based on norms of IL. But the
application or practice of IL in ML is not same in all states. eg. in America,
all treaties made under the authority of USA shall be supreme law of the land
(article vi, American constitution). In France, customary rules of IL are
considered to be a part of the law of land unless they conflict with the
constitution. In India, customary international law cannot be enforced by
courts without incorporated by legislature. In china, they are automatically
incorporated in law. In Germany, IL is the body of ML.
Some methods or
theories of implementation of IL in ML are:
i) Transformation ii) Adoption iii) Delegation
i) IL undergoes
transformation as it spreads universally. Unless transformed, it cannot be
applied to ML States incorporate treaties and norms into their municipal laws
by specific transformational devices.
ii) It says that IL
cannot be applied in sovereign states unless and until the sovereign states
specifically adopt that law by way of enactments.
iii) IL delegates the
rule making power to each state according to 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.
Dualist: Heinrich
Triepel (12 Feb. 1868-23 Nov. 1946) German Jurist, Legal Philosopher and
Professor of Law in Berlin. Michel Virally (6 Jun 1890-27 Apr1980)
considered Austrian origin, German Public Lawyer. Hans Kelsen (11 Oct.
1881-19 Apr 1973) Austrian Jurist, Legal and Political Philosopher. Georges
Scelle (19 Mar – 8 Jan 1961) born in France, International Jurist, member
of UN international law commission, Professor of Law faculty of Dijon France.
Monist: Alfred
Verdross (22Feb. 1890 – 27 Apr.1980)
Austrian diplomat, Vienna University professor, international lawyer. George
Jellineck (16 Jun 1851 – 12 Jan. 1911) considered Austrian origin, German
public lawyer. Hans Kelsen (11 Oct. 1881 – 19 Apr. 1973) Austrian
jurist, legal and political philosopher. Georges Scelle (19 Mar. 1878 –
8 Jan. 1961) born in France, international jurist, member of UN international law commission, Professor of
law faculty of Dijon France.
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