Legal

International and National Law: Which Rule should prevail?

________________________________________________________________________________

This Blog is written by Bhagyashree Dutta from Amity University, Mumbai. Edited by Oshin Suryawanshi.

________________________________________________________________________________

INTRODUCTION

Law in itself has been an integral part of a human being’s life, back from the pre-civilization to the contemporary life where we are supposed to be civilized, there is no denial in the fact that as the social setting grew, it became more complex and the law widened its hemisphere accordingly. Earlier, individuals did not find it safe to communicate in any way with someone outside their community or kin, even if they did there were stringent rules concerning the same, but gradually the need for interdependence grew and such interactions became crucial, wherein it was realized that amicable and flexible law (rules) separate from something that governs their community is required.

There isn’t much evidence showing whether national laws are derived from international laws or vice versa, everyone has their own version and supporting illustrations. However, the sources of both these laws are found to be the same. The conflict over which one originated first is far less complex than another important argument i.e., between international and national law, which rules should prevail?

The role of a nation has over the centuries evolved from being a just territory to a welfare state, the responsibility is more than just the protection of its citizens now. As per the popular legal theory, every state is sovereign and equal. However, the prodigious growth in human interaction and communication beyond the boundaries of their nation, the growth in global rivalries and friendships among individuals and states, in reality, no state, not even the most powerful ones can be deemed as entirely sovereign, the existence of interdependence has become an element of survival. Therefore, the acts of even one state in this close-knitted network mark an impact on the whole system, leading to an increased interpenetration of both international and national laws, at least on common topics such as warfare, environment, and human rights. With such a constant interface of international and national laws, the conflict between these two becomes almost inevitable regarding which one should prevail.

The debate over which of these laws is supreme and who has the last say in case of conflict has been a controversial one, so much so that there is always one theory superseding the other, resulting in the discussion going back to square one: which law is prevalent. It is safe to accept that it is a matter of perspective, but the world cannot be governed based on such widespread subjectivity. After a thorough study, one can conclude saying every state has its own views and ways of functioning when international law and national law are on the same battlefield.

INTERNATIONAL LAW AND NATIONAL LAW

International Law

An English philosopher Jeremy Bentham first coined the term in the 1700s, without any doubt international law has evolved into a much-detailed dynamic since then.

There is no one “all-inclusive” definition of international law.

As per the Black’s Law Dictionary, international law is “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)”

The United Nations defines international law as “the legal responsibilities of States in their conduct with each other, and their treatment of individuals within State boundaries.”

Despite the dearth of a superior authority to enforce such norms, nations see international law as binding on them, and it is this feature that gives these rules legal status.

International law, unlike national or domestic law, is not codified in any legislation passed by a legislature. Even multilateral treaties apply only to those states that have agreed to be bound by them by signing, ratifying, or acceding to them. And due to this characteristic of international law, it is sometimes understood to be a weak law, although its impact has been remarkable over the years.

National Law

National Laws are also popularly known as Municipal Laws or Domestic laws.

According to the definition given in Black’s Law Dictionary, municipal laws are “The ordinances and other laws applicable within a city, town or other local government entity”

National laws are therefore the domestic laws or municipal laws of a country, which govern all the parts of that particular nation, from villages, cities, towns, states, and provinces. It is set down in legislation, after being approved by the country’s parliament. All the citizens, except specifically exempted, are automatically bound by the laws of their nation.

RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW

In order to understand the supremacy of both these laws, it is imperative to understand the interconnection between them. This will also aid in understanding the consequences in case of a conflict between these. The conflict between international and national law is frequently depicted as a high-level theoretical debate, usually between ‘dualism’ and ‘monism.’ These are the two major schools of thought, opposite to each other, that explain the relationship between international and national law.

Monism

National and international law, according to monism, comprise a single legal order, or at the very least a set of interlocking orders that should be assumed to be coherent and consistent.

It postulates that both international and national law belong to the same legal order, are derived from the same source and there is no difference, no clear and complete separation between them. It articulates that international law is not a foreign law and it significantly contributes to the national law. No special process is required to transform or introduce international law into the national law since both are from the same constituency and there is no difference between them. On that ground, international law can be applied in a national legal order, without any conflict, and is superior. The Monist school of thought favors a unified theory of law, in which nations draw their laws from a higher source of law, and any statute that conflicts with international law is declared illegitimate or stands invalid. Consequently, it is assumed that the difficulty in the application of international law within states in eliminated, and international law is subconsciously deemed as supreme/prevalent.

A study by Hans Kelsen, a jurist who supported the monist theory is extensively studied in this school of thought, his theory is also known as the grundnorm theory. According to Kelsen, monism is scientifically established if international and national law is part of the same system of norms receiving their validity and content by an intellectual operation involving the assumption of a single basic norm (Grundnorm). He points out that “one can conceive of international law together with the state legal systems as a unified system of norms in exactly the same way as one is accustomed to regarding the state legal system as a unity.” According to his theory, all principles of international law are superior to municipal law. Municipal laws that are in conflict with international law are automatically declared null and void.

Dualism

As opposed to monist theory, dualism favors both international law and national law as laws of two separate plains, distinct from each other and supreme in their own areas. The domestic legal order is believed to be fully different from international legal order, i.e., two circles that are not merged together but can touch each other while being autonomous. It is held that international law and national law operate independently, no law is superior to the other. This theory is founded on the assumption that these two legal orders are based on separate social and legal realities. As a result, it is emphasized that the sources are distinct; in the state, the source is the legislation, whereas in international law, the source is the agreement, the subjects are also distinct, international law majorly deals with nations and national laws majorly deal with individuals.

According to the dualist approach, international law cannot interfere with municipal laws as long as international law rules are not incorporated into municipal laws. National laws are applicable at a domestic level and international law is applicable at an international level.

It does stipulate that both these laws are two circles, not conjoined but touching each other, which means they do operate alongside each other. In order for international law to be applicable in a nation, a special notification/process has to be adopted. When rules of international law are applicable within a state, it is because they have been adopted by the state’s internal law through a prescribed process, and they apply as part of that internal law, not as international law. Therefore, approval of the State (its Parliament or respective legislative body) is mandatory for the international law to be functional within the state. In the event of a dispute between international and domestic law, the dualist assumes that a national court will apply domestic law, or that the national system will decide which rule will prevail.

Example: Article 253 of the Constitution of India reflects the principle of dualism. It says – “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.”[_[i]]

There are a few other theories emerging out of these two theories.

Such as the Transformation or Specific Adoption theory, Delegation theory, and the Harmonization theory.

ANALYSIS

Even after years of debate and discussions, one hasn’t arrived at a conclusion as to which law is superior in the event of a conflict between international law and national law.

The two theories, as much as they are convincing, come in with their own set of criticisms as well if looked deeply. Above all, neither theory adequately accounts for the practice of international and national courts, which play a critical role in articulating the perspective of various legal systems.

In my opinion, all nations are distinct from each other. It’s history, the culture, the social and economic conditions, no state is a replica of the other. Keeping such facts in mind, it can be concluded that there cannot be just “one uniform law” governing all these states. There is no “one-size-fits-all” law. it is necessary for the nation to formulate such laws which will best suit its people. This particular aspect opposes the theory of monism because we cannot assume international law to govern all the states equally while they themselves are unequal in so many instances, if equals cannot be treated unequally, unequal must not be treated equally too.

There are almost 200 nations, some old, some new, some sort of uniformity in their governance is required in order to maintain world peace, security, and harmony. Imagine this, in a conflict between two states, both of distinct legal systems, if both remain adamant on resolving the conflict in accordance to their own laws, the conflict would never get resolved amicably. This is why a uniform legal order is required, especially to deal with common topics which individuals of all states are subject to, such as human rights, humanitarian issues, environment. The dualist approach is opposed in this respect.

However, it seems to be more practical because it does leave a small vacuum, as compared to the monist theory, although not entirely,

It does not mandate that international law must be above national law, in fact, it gives the nation the opportunity to analyze the particular international law, whether that law will fit the ideologies of the nation, whether it will be in conformity with its law of the land and decide whether they want it to be a part of their legal system, unlike the monist theory.

When confronted with this seeming deadlock discussed above, it seems logical to seek a way out of the monism/dualism conflict, as none of them prove to be adequate enough.

Germinating out of both these theories, there have been other conventional theories coming in, one of them is the “Harmonization theory” which is a modified version of the dualist theory.

It can be assumed to be the most appropriate theory in determining the position of these laws. The Harmonization Doctrine manages to eliminate the barriers that exist between the two schools of monism and dualism, as well as the ideological disputes that exist between them.

They contend that naming both international and municipal legislation “laws” would be inappropriate if they were so distinct and independent of one another. This theory was expounded by Fitzmaurice. According to him, “there is no common field of operation: the two systems do not come into conflict as systems since they work in different spheres, each supreme in its own field.” This theory in extension highlights the role of the courts in resolving the conflict between international and national law, suggesting that the courts should try and minimize the differences between them through a process of judicial harmonization. The international laws must be used to steer the municipal legal orders through a judicial process, rather than harping on the superiority or inferiority of either of the laws.

It is a practical approach because both the laws are respected in their own spheres and in each other’s area as well. In case of a conflict, a cast-ironed, inflexible rule is not prescribed, rather, the final decision is entrusted with the courts which are either qualified or before which the conflict lies. In case the court finds that the state law is in extreme violation of the international law, which must be accepted, the court may order for the re-drafting of that particular law and bring it in harmony with the said international law.

With the increasing scope of international law, a state is not expected to be in sheer contradiction of that law, it must be in close harmony to it if not entire. This will reduce conflicts and the question of supremacy altogether, especially on matters which are of global concern such as environmental and human rights issues.

Therefore, instead of debating over which law is supreme and which one should have the last say, it is the need of the hour to channelize the resources into bringing both the laws in harmony with each other as much as possible, particularly the laws which deal with global issues and relations of one nation with the other (public international law). Such a step would promote world peace, security, and harmony which is a major concern of the contemporary realities.

Conflicts especially arise when there is no strong evidence or supporting fact as to why a law should prevail over the other, and this may be resolved if the above method is adopted.

The dualist theory says that even if a state is a party to an international treaty, for it to be adopted as a national law, the transformation/specific adoption or any such formal procedure must be followed.

However, in my opinion, such a step is not required, it is a meaningless utilization of resources resulting in a huge time consumption. The reasons of the same are:

The Vienna Convention of Law of Treaties under its Part III: Observance, Application and Interpretation of Treaties, Article 27 says – “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.”[ii]

It means even if a treaty disagrees with a state’s municipal law (including its constitution), the state is nonetheless obligated to fulfill its treaty obligations. Article 46 of the Vienna Convention provides the single exception to this norm, which applies when a state’s declaration of consent to be bound by a treaty constitutes a clear violation of a “rule of its internal law of fundamental importance.”

A state, when before becoming a party to an international treaty, must know the contents of that particular treaty, it must point out any conflict or violation which may take place between its national law and the international law concerning the treaty and then sign it accordingly. The state therefore has a responsibility to properly study the treaty and then determine whether it wants to be a part of it, since there is no coercion and the state has free consent to decide on the same. Violating the terms of the treaty after signing it, on the ground that it is in violation of the national laws is absurd and must be avoided. The treaty must stand as the ultimate law.

There is a principle in international law, known as Pacta Sunt Servanda, which means an agreement (treaty) must be kept/honored. Therefore, a violation of the treaty is also deemed unethical.

We can conclude by saying that, international law and national law belong to two different plains, in case of a conflict, instead of deciding which one is supreme, the court must interpret them in such a way that they are brought in harmony with each other. In case of the presence of a treaty, the treaty must prevail over the national law of its signatory.

At the end, such conflict is subject to whether a state is a monistic nation or a dualistic nation.

JUDICIAL PRONOUNCEMENTS IN DUALISTIC COUNTRIES

Canada

*Reference re Secession of Quebec[_[iii]]***

Facts:

Following the close referendum outcome in 1995, the Government of Canada filed a petition with the Supreme Court of Canada, asking the court to rule on the legal concerns underlying unilateral secession. Because the Quebec government declined to participate in the ruling, the Court appointed André Jolicoeur as an amicus curiae.

Issues:

In a conflict between international and national law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

Held:

Quebec cannot leave Canada unilaterally; but, a clear vote in a referendum on a clear question to secede should lead to secession negotiations between Quebec and the rest of Canada.

The Supreme Court noted that it is necessary for the courts to look into the international law in number of cases, with the intention to determine the rights and obligations of actors within the legal system of Canada.

Alternatively, it was claimed that this was solely an issue of international law, and therefore the Supreme Court had no authority over it. This argument was dismissed by the Court, which stated that it was not functioning as an international tribunal (i.e., it was not attempting to bind other nations), but rather was delivering an advisory opinion on the applicability of international law to domestic affairs.

India

*Keshavanda Bharati v. State of Kerala[_[iv]]***

In the landmark judgment of Kesvananda Bharti, where the court introduced the Basic Structure Doctrine.

The Court also affirmed that, when the language of municipal law is unclear or contradictory, the court must seek the assistance of the municipal legislation’s parent international authority. This is because Article 253 of our Constitution grants our parliament sole authority to enact laws to give effect to any treaty, convention, or agreement with any country, as well as any judgments reached any international conference.

*Vishakha & Ors. v. State of Rajasthan[_[v]]***

The case dealt with sexual harassment of women at the workplace. At the time, India did not have any rules or laws regarding such acts i.e., sexual harassment of women at the workplace. The case took the support of international law in order to formulate the guidelines and pass the appropriate judgment. It mentioned, in an event when there is a void in the national law, regard must be had to international treaties and norms, as long as they are not inconsistent with the law of the land. The role of the judiciary in the Beijing Statement of Principles of the Independence of the judiciary in the LAWASIA region was referred by the Indian Court in this decision. Since there was an absence of a domestic law which dealt with “Sexual Harassment of Women at the workplace”, the court laid down certain rules and guidelines to fill the void, these are known as the Vishakha Guidelines. These guidelines are inspired by and are in accordance with several international conventions on gender equality. One of the most important conventions taken into consideration was the Convention on the Elimination of all Discriminations Against Women (CEDAW), every signatory has to take steps to eradicate gender inequality to every possible extent.

*National Legal Services Authority v. Union of India[_[vi]]***

In this landmark case, the court recognized transgender as a third category of gender. The court said that, if the Indian parliament passes legislation that conflicts with international law, Indian courts are obligated to apply Indian law rather than international law. However, in the absence of conflicting legislation, Indian municipal courts would uphold international law. In reaching its judgment, the Court considered the progressive jurisprudence of other countries, including the United Kingdom, Australia, New Zealand, and the United States, in recognizing transsexual person’s basic rights. It decided that India must adhere to international human rights conventions and non-binding standards because the government lacked “appropriate laws protecting the rights of transgender people.” As a result, the Court went on to interpret the Indian Constitution in light of international human rights conventions and principles.

CONCLUSION

Over the years, with the emergence of international law as a crucial legal order, and with countries making their legal systems stronger than ever, the conflicts between these two laws have been rising. However, it is noteworthy to mention that they are not always in conflict. In many instances, they have been extremely helpful to each other, rather, they have filled the voids in each other’s spheres thus promoting a healthy, effective and efficient legal system all over. Due to such amalgamation and simultaneous operation of these laws, many decisions have been taken in favor of the greater good of humankind.