International law and municipal law

The essentials

Municipal law means the domestic law of a state. Two main theories explain how international law relates to it. Monism treats both as parts of a single legal order, so international law applies directly inside the state. Dualism treats them as separate systems, so international law applies domestically only after it is transformed by national legislation. In practice, states mix the two approaches.

Key points

• India's constitutional provisions: Article 51(c) (a Directive Principle) asks the State to foster respect for international law and treaty obligations; Article 73 extends Union executive power to treaty-making; Article 253 empowers Parliament to make laws for implementing treaties and international agreements, even on State List subjects.
• Treaties in India: generally need legislation to be enforced domestically, reflecting a dualist approach.
• Customary international law in India: applied by courts as part of Indian law if it does not conflict with domestic statutes (Gramophone Company of India v. Birendra Bahadur Pandey, 1984).
• Jolly George Varghese v. Bank of Cochin (1980): the ICCPR could not override a clear domestic law, but courts try to interpret Indian law in harmony with international obligations.
• Filling gaps: in Vishaka (1997) the Supreme Court used CEDAW where no domestic law existed.
• Comparative practice: in the UK, custom forms part of common law but treaties need an Act of Parliament; in the USA, treaties are part of the "supreme Law of the Land".

Exam tips

• Remember: where there is a conflict, Indian courts apply the domestic law; where there is a gap, they may use international norms consistent with Fundamental Rights.
• Article 253 is often tested in connection with environmental laws passed to implement international conferences.

Common mistakes

• Saying India is purely monist.
• Treating Article 51(c) as an enforceable right.