(a) Critically examine various theories relating to the relationship between International Law and Municipal Law. (20 marks) (b)…

(a) Theories on international law and municipal law

The question is whether the two form one legal order or two, and which prevails in conflict.

• Monism (Kelsen, Lauterpacht): all law is one system under a basic norm, with international law superior and individuals the ultimate subjects. Critique: national constitutions in fact decide how international law operates, and national courts do not generally strike down statutes for breaching it.
• Dualism (Triepel, Anzilotti): the systems differ in sources (common will of States against the will of one State), subjects and substance. International law applies internally only when transformed. Critique: both now regulate the same matters, individuals are international subjects, and rigid dualism lets States evade obligations.
• Coordination theory (Fitzmaurice, Rousseau): the systems work in different fields, so conflicts are of obligations. Internationally, international law prevails and internal law is no excuse (VCLT Art 27, Greco-Bulgarian Communities, PCIJ 1930). Domestically, the constitution decides and courts harmonise.

State practice:

• United Kingdom: custom is incorporated unless contrary to statute (West Rand 1905, Trendtex 1977). Treaties need an Act (J.H. Rayner 1990), and statute prevails (Mortensen v Peters 1906).
• United States: custom is "part of our law" (Paquete Habana 1900). Treaties are supreme law, but only self-executing ones apply directly (Medellin v Texas 2008).
• India: treaties affecting rights need legislation under Art 253 (Maganbhai 1969), and statute prevails in clear conflict (Jolly George Varghese 1980). Custom is incorporated unless contrary to statute (Gramophone Co 1984). Unincorporated treaties fill gaps, consistent with Art 51(c) (Vishaka 1997, NALSA 2014).

Neither pure theory fits. Most States are dualist for treaties and incorporationist for custom, so the coordination approach best explains practice, including Indian practice.

(b) Theories of State succession

State succession is the replacement of one State by another in responsibility for a territory, through decolonisation, secession, dissolution, merger or cession. It differs from a change of government, where the State continues, as Russia continued the USSR in 1991.

1. Universal succession (Grotius): like a Roman-law heir, the successor takes all rights and obligations. It ignores the change of sovereignty and is rarely followed.
2. **Clean slate (tabula rasa):** the new sovereign starts free of prior obligations (West Rand Central Gold Mining v R 1905, Transvaal debts). It risks instability and ignores acquired rights.
3. Organic substitution (Huber): the successor replaces the predecessor in its functions, so local rights and obligations continue.
4. Continuity and acquired rights: private rights and local law survive until changed (German Settlers in Poland, PCIJ 1923).
5. Modern partial succession (O’Connell, Brownlie): boundary and other dispositive treaties pass, political treaties lapse, and property, archives and debts are shared equitably.

Codification: the Vienna Convention of 1978 keeps boundary and territorial regimes (Arts 11-12, treated as custom in Gabcikovo-Nagymaros 1997), gives newly independent States a clean slate with an option to notify succession (Arts 16-17), and continues treaties on uniting or separation (Arts 31, 34). The 1983 Convention on property, archives and debts is not in force. Uti possidetis juris preserves colonial boundaries (Burkina Faso v Mali 1986).

India was treated as the continuing State under the Indian Independence (International Arrangements) Order, 1947, with Pakistan as a new State. In Vinod Kumar Gosalia (1981) the Court held that after the annexation of Goa only rights recognised by India survived.

(c) Acquisition and loss of nationality

Nationality is the legal bond between an individual and a State. Each State decides its nationals (Hague Convention 1930, Art 1), but others need recognise it only if consistent with international law. Nottebohm (ICJ 1955) required a genuine link for diplomatic protection.

Acquisition: birth by jus soli (place) or jus sanguinis (parentage), naturalisation after residence, registration, marriage or adoption in some systems, transfer of territory (often with a right of option), and resumption.

Loss: renunciation, substitution by voluntarily taking another nationality, deprivation for fraud or disloyalty (subject to the bar on arbitrary deprivation in UDHR Art 15), expiration through long residence abroad, and option on territorial transfer. Loss through marriage is now barred by CEDAW Art 9 and the 1957 Convention on the Nationality of Married Women. The 1954 and 1961 Conventions guard against statelessness.

Indian law (Arts 5-11, Citizenship Act 1955):

• Birth (s.3): anyone born before 1 July 1987, then only with one citizen parent, and from 3 December 2004 only if both parents are citizens or one is a citizen and the other not an illegal migrant.
• Other routes: descent (s.4), registration (s.5), naturalisation (s.6) and incorporation of territory (s.7). The CAA 2019 (rules notified March 2024) fast-tracks specified minorities from Afghanistan, Bangladesh and Pakistan who entered by 31 December 2014. Section 6A (Assam Accord) was upheld in October 2024.
• Loss: renunciation (s.8), termination on voluntarily acquiring foreign citizenship (s.9, decided by the Central Government, Izhar Ahmad Khan 1962) and deprivation (s.10).
• India does not allow dual citizenship. The OCI scheme (ss.7A-7D) is a substitute.