Although, according to international law, each state is sovereign and equal, states, especially those in the Third World which have achieved independence after long periods of colonial domination, are realizing that they cannot be truly sovereign. "Interdependence and the close-knit character of contemporary international commercial and political society ensures that virtually any action of a state could well have profound repercussions upon the system as a whole and the decisions under consideration by other states"1 . Most third world countries face problems relating to ethnic minorities which in turn give rise to serious questions of human rights. In such situations, the international obligations of states permit the international community to pierce the veil of sovereignty to ensure that states comply with such obligations. International regimes relating to the economy, trade, customs, environment, terrorism, communications and so on, all impinge on sovereignty. The erosion of the concept of sovereignty is compelling us to rethink about the concept itself. The necessity to have common action against threats to humanity require us to rewrite many of our definitions.

The increasing importance of international law raises many questions regarding the relationship between municipal law and principles of international law. Although municipal law deals with issues that arise between the state and the individual and between individuals and international law deals with matters that arise between states, questions of international law do arise in municipal courts. While incorporation of international law into domestic law is a matter entirely in the hands of the state concerned, states cannot plead municipal law as a defense for not fulfilling international obligations.

Dualism and Monism
Two theories have emerged regarding the relationship between international law and municipal law. Dualism, sometimes called pluralism, considers the relationship on the basis of the supremacy of the State. According to this school of thought, international law and municipal law belong to two separate legal systems. The incorporation of international law is a matter for the state in the exercise of its supreme authority within its domestic jurisdiction. According to the monist school, international law and municipal law are considered to be parts of the same system.

Some systems are neither clearly monist nor dualist. Article VI of the Constitution of the United States of America provides that all treaties made under the authority of the United States "shall be the supreme Law of the Land". In the U.S., customary international law is applied in the absence of specific legislation. But treaty provisions and customary international law are subject to subsequent legislation. In the Commonwealth, systems are mostly dualist. A ratified treaty has domestic application only if enabling legislation is passed. In many common law jurisdictions, including the United Kingdom, customary international law is considered to be part of municipal law in the absence of contrary legislation. An example of a monist legal system is Netherlands.

In countries with a dualist legal system, such as India and Sri Lanka, the challenge is the use of ratified international treaties, especially international human rights treaties, in the absence of enabling domestic legislation. It is a well established rule of interpretation in English Law that unless there is express legal provision to the contrary, legislation must be interpreted in a manner that is consistent with the international obligations of the United Kingdom. The presumption here is that Parliament did not intend to violate the international obligations of the United Kingdom.

Article 51 of the Indian Constitution, which is in the Part laying down Directive Principles of State Policy, requires the State to endeavour to "foster respect for international law and treaty obligations in the dealings of organized peoples with one another".

In Bishwamdhar Singh v. Orissa2 , Article 17(2) of the Universal Declaration of Human Rights was invoked to challenge an acquisition of land governed by Article 31(2) (now repealed) of the Indian Constitution, which provided that the adequacy of compensation could not be raised in any court. It was held that as the Indian Constitution had not adopted the relevant provision of the Universal Declaration without modification, the provisions of the Declaration would be of no avail in a municipal court if that provision was in conflict with the Constitution.

The Sri Lankan Experience
The Constitution of the Democratic Socialist Republic of Sri Lanka provides in Article 27(15) that the State shall "endeavour to foster respect for international law and treaty obligations in dealings among nations". Article 27 is a provision in the Chapter on Directive Principles of State Policy. The provisions of that chapter do not confer rights and are not enforceable in courts. It is not out of place to mention at this point that the Constitution of the Sri Lanka Bill which was presented to Parliament in August 2000 went further and provided in Article 52(9) that the State "shall strengthen, respect and foster respect for international instruments relating to human rights and humanitarian law to which Sri Lanka is a signatory." The Bill, however, was not put for vote as it was clear that it could not muster the required two-thirds majority.

Sri Lankan courts have used international treaties as interpretive guides when there was ambiguity in statutory provisions.

Manawadu v. Attorney General3  concerned the confiscation of a lorry used to transport illicit timber, without giving the owner of the lorry an opportunity to show that the offence was committed without his knowledge or participation. Section 40 of the Forest Ordinance, in its original form, provided that where any person is convicted of a forest offence, any vehicle used in committing such an offence shall be liable to confiscation. The Supreme Court, in Rasiah v. Thambyraj4 , held that although the section does not provide for an inquiry before confiscation, it is one of the fundamentals of administration of justice that a person should not be deprived of property without an opportunity being given to him to show cause against such an order being made. The Court held that there should be no confiscation if the owner can show that the offence was committed without his knowledge and without his participation.

Section 40 was amended in 1982 to provide that upon a conviction of any person for a forest offence, a vehicle used in committing such an offence shall, by reason of such conviction, be forfeited to the State. This means that confiscation is automatic upon a conviction being entered, subject only to an appeal against the conviction. In Manawadu v. Attorney General, the conviction and forfeiture was under the amended Section 40. The question that arose was whether the amended section dispenses with the maxim audi alteram partem when it mandates forfeiture upon conviction.

Sharvananda C.J. stated that the amended section would grievously affect an owner of the vehicle who is not implicated in the commission of the offence. Principles of fairness and justice militate against a construction of the amended section that forfeiture is automatic upon conviction of the offender irrespective of the fact that the owner of the vehicle is innocent and is not a party to the commission of the offence. The learned Chief Justice stated that such a construction is repugnant to the Rule of Law that permeates the Constitution and should yield to an alternate construction which is in harmony with justice and human rights.

The learned Chief Justice referred to Article 17(1) of the Universal Declaration of Human Rights which states that "everyone has the right to own property" and Article 17(2) which guarantees that "no one shall be arbitrarily deprived of his property". An intention to provide for arbitrary infringement of human rights cannot be attributed to the legislature unless such intention is unequivocally manifest. When Parliament is enacting a statute, the court will assume that it had regard to the Universal Declaration of Human Rights and intended to make the enactment accord with the Declaration and will interpret it accordingly. The learned Chief Justice rejected the submission that the amended section intended to deprive the owner of a vehicle that had been used by the offender in committing an offence without the owner’s knowledge and without his participation. It is important to note that the Sri Lankan Constitution does not guarantee the right to own property or the right not to be arbitrary deprived of property. Even in the absence of such a fundamental right, the Supreme Court interpreted the relevant section in consonance with Sri Lanka’s international obligations.

In Mrs W.M.K.de Silva v. Chairman, Ceylon Fertilizer Corporation5  Amerasinghe J. referred to the definition of "torture" adopted by the General Assembly of the United Nations in Resolution 3452 (XXX) to assist in the interpretation of Article 11 of the Sri Lankan Constitution which prohibits torture.

The International Covenant on Civil and Political Rights was used as an aid to interpretation by the Sri Lankan Supreme Court in a recent case of Weerawansa v. Attorney General6 . The case concerned an Assistant Superintendent of Customs who was arrested and detained under the provisions of the Prevention of Terrorism Act. The Act provides for detention by the executive without a prior judicial order and for longer periods than under the general law. However, the relevant provisions do not expressly dispense with the need to bring a detainee before a judicial officer.

Article 13(2) of the Constitution requires that a person deprived of liberty must be brought before a judicial officer and that any further deprivation of liberty can only be upon a judicial order. However, the exercise of an operation of Article 13(2) is subject to such restrictions as may be prescribed by law, inter-alia, in the interests of national security or public order. Section 9(1) of the Prevention of Terrorism Act expressly authorized deprivation of liberty upon an executive detention order, thus nullifying the safeguard that deprivation of liberty can only be upon a judicial order. However, the Act did not expressly take away the first safeguard.

Mark Fernando J. held that Section 9(1) did not dispense with the need for production before a Judge subsequent to the making of an executive detention order. The learned Judged stated that such production cannot be said to be "of little consequence or a minor matter". Furthermore, such a safeguard is internationally recognized. Article 9 of the International Covenant on Civil and Political Rights, to which Sri Lanka is a party, requires that a person deprived of personal liberty shall have a right of access to the judiciary. Sri Lanka has acceded to the Optional Protocol and a detainee who is denied of that right may even complain to the Human Rights Committee of the United Nations.

Fernando J. held that the Supreme Court should have regard to the provisions of the Covenant. Article 27(15) of the Constitution require the State to foster respect for international law and treaty obligations in dealings among nations. This implies that the State must likewise respect international law and treaty obligations in its dealings with its own citizens, particularly when their liberty is involved. The State must afford to them the benefit of the safeguards which the international law recognizes.

Other jurisdictions
The experiences of several other jurisdictions may be useful.

The High Court of Australia, in Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh FC 7  while holding that the provisions of an international treaty would form part of Australian Law only if validly incorporated into municipal law by statute, nevertheless held that where a statute was ambiguous, a court should favour a construction which is in accord with Australia’s treaty obligations. It was also held that a statute had to be interpreted, as far as its language permitted, so that it was in conformity and not in conflict with established rules of international law. The majority of the Court went on to state that the ratification of a convention itself would give rise to a legitimate expectation that the administration would act in conformity with the unincorporated but ratified convention, unless there were statutory or executive indications to the contrary.

In civil law systems the practice is different. Article 25 of the German Constitution provides that general rules of public international law are an integral part of federal law. They take precedence over laws and directly create rights and duties for inhabitants. Thus, international law is regarded superior to municipal law. Treaty provisions too are regarded as being superior to municipal law, but do not affect the Constitution.

As noted earlier, Netherlands has adopted the monist approach. Articles 93 and 94 of the Constitution provides that treaties have precedence over municipal legislation. Provisions of municipal legislation, whether prior to or subsequent to an international treaty, is invalid if inconsistent with such a treaty.

In France too, ratified treaties become part of the municipal law. However, treaties on certain subjects are ratified by means of legislation.

The South African constitutional provisions are interesting. Section 39(1) requires a court, tribunal or forum to consider international law in interpreting the Bill of Rights. Foreign law also may be considered. Section 233 requires every court to prefer any reasonable interpretation of legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law. Under Article 232, customary international law is law in the Republic, unless it is inconsistent with the Constitution or an Act of Parliament.

Towards more domestic application of international law
In dualist systems such as India in Sri Lanka, courts need to be persuaded to recognize international law, especially international human rights law, as an interpretive guide. Today, there is a rapidly increasing body of international human rights law on issues ranging from the right to self-determination and crimes against humanity to rights of women, children and the disabled. The areas of protection are becoming more wide. Definitions found in international law, relating to difficult issues have been found to be of immense value in domestic courts.

The Bangalore Principles adopted at a judicial colloquium convened in Bangalore in 1988 on the domestic application of international human rights norms, stated, inter-alia, as follows:

It is within the proper nature of the judicial process and well established judicial functions for national courts to have regard to international obligations which a country undertakes - whether or not they have been incorporated into domestic law – for the purpose of removing ambiguity or uncertainty from constitutions, legislation or common law.

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