Define the concept of 'opposability' in the context of relationship between International Law and Municipal Law. Also discuss the relevance of this concept in modern times with special reference to India.

Defining Opposability

‘Opposability,’ in the context of international law and municipal law, refers to the ability of international law provisions to be invoked and enforced in national courts. It essentially answers the question: Can an individual or entity in a nation’s territory rely on an international treaty or customary international law principle in a domestic legal proceeding? The degree of opposability dictates the practical impact of international law within a state. A provision that is ‘opposable’ can be directly applied or used to interpret domestic legislation. Conversely, a provision lacking opposability may not be directly enforceable, although it might still influence judicial interpretation.

Theoretical Frameworks on International Law and Municipal Law

The concept of opposability is inextricably linked to the broader theoretical debates regarding the relationship between IL and ML. Three primary schools of thought dominate this discourse:

Dualism

Dualism posits that IL and ML are distinct legal systems originating from different sources and governed by different rules. According to dualists, international law, to be opposable, must be ‘transformed’ into national law through a legislative act or other constitutional mechanism. This transformation makes the international law provision part of the domestic legal order. Notable dualist thinkers include Schwarzenberger. This approach emphasizes state sovereignty and the primacy of domestic law.

Monism

Monism views IL and ML as part of a single, universal legal system. From a monist perspective, international law is inherently opposable once it is formulated and becomes part of the overall legal order. There's no need for transformation; international law simply coexists with and may influence domestic law. Kelsen's ‘Basic Norm’ theory is a prime example of monism. However, even monists acknowledge that practical limitations and constitutional structures can affect the extent of opposability.

Instrumentalism

Instrumentalism, a more modern approach, rejects the strict dualistic and monistic classifications. It focuses on the practical ways in which international law is used and interpreted within domestic legal systems. Instrumentalists argue that the relationship is context-dependent and influenced by political, social, and economic factors. Opposability, from this perspective, is not a fixed characteristic but a function of how states choose to engage with international law.

Relevance in Modern Times

The concept of opposability remains highly relevant in the contemporary international legal landscape. Several factors contribute to this:

• Globalization and Interdependence: Increased interconnectedness necessitates greater harmonization between international and national legal systems.
• Human Rights Law: The rise of international human rights law and the expectation that states will incorporate these rights into their domestic legal frameworks necessitate a degree of opposability.
• Trade and Investment Law: International trade agreements and investment treaties often contain provisions that directly impact domestic legislation and judicial decisions.
• Environmental Law: International environmental agreements require states to implement measures within their own jurisdictions, creating a need for opposability.

India and the Concept of Opposability

India’s constitutional framework presents a unique perspective on the issue of opposability. Article 51(c) of the Indian Constitution mandates the state to incorporate treaties and conventions into the domestic laws as ‘fundamental principles of governance.’ This provision has been interpreted as implying a degree of automatic incorporation, leaning towards a monistic approach. However, the judiciary has consistently emphasized the doctrine of parliamentary supremacy. Therefore, while treaties are generally considered to be incorporated, their direct application depends on legislative action and judicial interpretation.

Approach	Key Features	Impact on Opposability in India
Dualism	Distinct legal systems, transformation required.	Treaties require specific legislation for opposability.
Monism	Single legal system, inherent opposability.	Article 51(c) suggests automatic incorporation, but not always.
Instrumentalism	Context-dependent, political and social factors.	Judicial interpretation and legislative action determine opposability.

The VK Sasikala vs. State of Tamil Nadu (2017) case highlights the complexities. The Supreme Court held that the Indian government’s undertaking in an international treaty (the UN Convention Against Corruption) could be used to interpret domestic laws, even if the treaty itself was not directly enforceable. This demonstrates a pragmatic approach, drawing from instrumentalist principles.

Challenges in India

• Conflicting Interpretations: Disagreements between the executive, legislature, and judiciary regarding the extent of incorporation.
• Sovereignty Concerns: Resistance to directly applying international law due to concerns about national sovereignty.
• Lack of Awareness: Limited awareness among citizens and legal professionals about international law provisions and their potential impact.