LC 0703 What is International Law all about

 What is International Law all about

Table of Contents

1. Introduction
2. International Law
3. Subjects of International Law
4. Major theories
1. Realist theory
2. Fictional theory
3. Functional theory
5. Conclusion

Introduction

“Together with international unity and resolve we can meet the challenge of this global scourge and work to bring about an international law of zero tolerance for terrorism.”

                                                                                                        -Manmohan Singh 

This article basically deals with International law and how International law helps in integrating different nations and maintains peace and cooperation all over the world. International Law is a very wide concept which consists of different treaties, agreements between different nations and different subjects of International law. Law is the part of society which helps to develop a structure within which rights and duties are established. The world needs to build up interstate relations and international law fills this gap.

Different subjects that are included in International law have a different role in establishing good relationships and better cooperation among the Nations. The three major theories that are included in international law are a Realist Theory, Fictional Theory, and Functional Theory. And all the three subjects have a different strategy and role in International law. 

International Law

International law is a system of agreements and different treaties between different nations which helps in establishing and maintaining cooperation among different nations and also governs the relationship between different nations and how one nation interacts with other nations. Or we can also say that International law is a set of norms which is made up of by different nations through different treaties and customary practices and that norms regulate the relation of one nation to other nations. International law is divided or classified into two branches i.e. ‘Public International law’ and ‘Private International law’.

‘Public International law’ is a branch of International law which deals with the relationships between nations. It also refers to those laws, rules and different principles that concern the conduct of different nations. This means how each nation will behave with the other nations and regulates the different International organizations and sets their role. The primary motive for the creation of Public International law is inter-governmental organizations like the United Nations through the help of international treaties. Public international law includes humanitarian law, environmental law, human rights law, and these laws regulate the matter or issue of these areas particularly. 

‘Private International law’ is that branch of International law that deals with the conflict between private entities like the big corporate sector which have a network in more than one nation. Private International law governs the conflicts in the domestic laws of different nations which is related to the private transactions of nations. There is no demarcation between National laws and Private International law because National laws are the primary source of Private International Law. And the laws which were included in Private International law are Contracts, torts, family matters, Intellectual property and many more.

Public International Law includes Humanitarian law, Environmental law, civil rights, and others. Now, we will deal with what are these areas of law which are included or part of Public International law.

Environmental Law comes into existence when there is a matter of global environment. It is more important as more nations realize that the activities of one nation can harm the global environment. Environmental law is a collective term that provides protection to the global environment and restricts the activities of different nations which will deteriorate the global environment.

Humanitarian Law is a part of Public International law which is a set of rules for humanitarian reasons, to put a limitation on the armed conflict that is on the peak. Humanitarian law is basically known as the Law of war or law of armed conflict whose motive is to deal with any issue of war or armed conflict and it is required most and considered as essential when the country is on the verge of war with any country. 

Civil rights Law is also a part and this law guarantees the rights for each individual to receive equal treatment and prohibits discrimination in different aspects or areas. This Civil rights law ensures that there should be no suppression of the rights of people. Many countries enact various other laws little similar to the civil rights law i.e. Age Discrimination Act of 1975, Age discrimination in Employment Act, American with Disabilities Act.

Subjects of International Law

Subjects of International law means different entities which possess international personality. Or we can also say that those entities whose rights, duties, and obligations come under the International law and these entities have the power to confer these rights, duties and international obligations through the international claim. Subjects of International law does not mean different types of international law. It simply means the entities which have rights and power conferred in International law. 

Earlier this topic i.e. Subjects of International law is not so much debatable but after LPG policy came up in 1991, this topic heated up and becomes so much debatable in International Organizations and the simple reason behind this is that earlier only States were included or qualified for international personality but in the current scenario, many other entities other than the state is qualified for the international personality. There are mainly 7 subjects of International law i.e. States, International Organizations, Non-State entities, Special case entities, Individuals, Minorities and Indigenous People. All these are explained what are these subjects and why it is considered as subjects of International law.

States are considered as the original and major subject of International law and their legal personality derived from the international system structure. And one good thing is that all the states enjoy equal rights and international legal personalities. The International organization is mainly concerned with the rights, duties of each state and due to which the International organization lays down rules which every state observes and follows.

International Organizations are an association of different states which are formed with the help of a treaty or agreement between different nations and its function goes beyond the states and deals with the conflict of nations. With the establishment and rise of international organizations in the early 19th century, the legal status of international organizations in International law is questioned. But, the status of international organizations is determined to be a convention among the states.  

Non-State entities are those types of entities that are not registered as an independent state and also not have a legal status like the states have. The Non-State entities have a special type of personality in International law.

As they have not been registered as an independent state yet the Non-State entities have the right to participate in international conferences and in every treaty. But one thing more that differs it from the states is that the Non-State entities the rights and duties of Non-State entities are not similar to the state and their functions and power were also limited as compared to the state. Non-State entities existed for a particular function and this reason is considered for the limitation of rights and duties of Non-State entities. These entities fall into different categories i.e. Member of the Composed States or federal states, Insurgents and Belligerents, National Liberation movements, International territories. 

Special Case entities are the subjects of International law and Special case entities are classified into two categories which are granted special unique status under International law and they are the Sovereign Order of Malta, and the Holy See and the Vatican City.  

The Sovereign Order of Malta was established during the time of Crusades as a military and medical association. In 1834 order established its headquarters in Rome as a Humanitarian organization. At the time of taking control of Malta, Order already had an international personality and even after leaving the island he continued to exchange diplomatic legations with most of the European states and currently maintains diplomatic relationships with more than 40 states.

The Holy See and the Vatican City is the international legal person of the Roman Catholic Church and its location is set in the Vatican City in Rome. It is considered as the most unique person of International law and the reason behind why it is considered as the most unique person of International law is that it combines the feature of the personality of the Holy see with its location in the Vatican city, Rome.  

Individuals are always the main concern of International law and the growth of positivist theories of law darkens the concern for human beings but in the 20th century again the International law became concerned for the individuals. During the Second world war, the trend which up comes in international law had been towards blaming or attaching direct responsibilities to the individuals for crimes committed against the peace and security.

Minorities are the next concern along with the concern of individuals during the 20th century. The serious and major problem which comes out after the first world war is to protect the minorities in Europe. The League of Nations assumed its responsibilities in the field of treaty-based protection of minorities in Europe in social aspects such as education, health, and fair labor standards.

Indigenous Peoples a special issue that came under International law. Despite so many attempts of the United Nations to recognize group rights to Indigenous peoples but nothing changed and it is still considered as a specific category of minorities with special needs. 

Major theories

There are different theories as regards to the rising debate on Subjects of International law but there are majorly three theories of International law. All three major theories and their explanation is mentioned below. 

Realist theory

If we see what the followers of this theory think then we come to know that according to them the only subject of International law is the Nation States. They believe that the Nation-states are the only entities for whose conduct the International law comes into existence. The Nation States have separate legal entities and have their own rights, duties and obligations which they can possess under International law. So, according to the followers of the Realist theory, Nation-states are the ultimate and only subjects of International law. 

Fictional theory

According to the supporters of the fictional theory the only subjects of international law are the individuals not the nation-states. The reason they gave that the legal orders are for the conduct of human beings and for their wellness. And there’s nothing much difference between Nation States and an individual because Nation States are the aggregate of the individuals. And according to the followers individuals are the sole subjects of International law. 

Functional theory

In both the theories i.e. Realistic and Fictional adopted their opinion without considering other subjects of International law. But the functional theory tends to meet both the extremist theories. According to this theory neither Nation States nor individuals are the only subjects of International law. Even, not only the Nation States and individuals are the subjects of International law but other entities have been granted international personality and status and considered as Subjects of International law. 

After analyzing all the three theories then according to my view Functional theory is more accurate and best suited for the modern area of International law and also found suitable according to the world condition and trend. Declaring any one subject as the sole subject of International law is never a solution and hence, the other two theories lag behind than the Functional Theory. 

Conclusion

Is the existence of International law for all the Nations in the world a Good Concept? It is always said that everything has a positive as well as negative aspects. International law binds the whole nation and ensures positive interaction between different nations and also ensures better cooperation among the Nations. 

But on the other side International law has negative aspects as well as International law sometimes. If there will be absence of International law and every country has their own law related to international conflict then it will be a really difficult situation to cope up with each other and finally comes to a single decision to which everyone agrees. But everything has positive and negative aspects so in the future the International law should be amended instead of scrapping it. 

And according to the functional theory followers it is said all the entities should be declared as subjects of International law which is good but in the current scenario. In the upcoming days, International law will be more vast and wider so to cope up with a better plan should be made and according to that the subjects of International relations should be declared.

This article is written by Rohit Raj , a Student pursuing B.A. LLB. (Hons.) from Lloyd Law College. This is an exhaustive article which deals with the Concept of International Law and different Subjects of International Law.

LC 0703 Whether International Law is a true Law

0703 Whether International Law is a true Law

Before we go ahead and discuss about the question, I want to clarify that it is only for the academic interest because it has been well established for once and for all times that international law is a true law.
 
The controversy whether international law is true law or not depends upon the definition of the word law. As remarked by Prof. Glanville L. Williams, “ The largest of jurisprudential controversy that as to the word law is a verbal dispute and nothing else.” If we subscribe to the view of Hobbes, Austin and Pufendorf, that law is a command of sovereign enforced by superior political authority , The international law cannot be included in the category of law. On the other hand, if you subscribe to the view that the term ‘law’, cannot be limited to the rules elected by the superior political authority, then international law can be included in the category of law.
 
According to Austin, law is given by audit terminate Supriya political thought to political inferiors and is backed by a coercive enforcement agency. Thus, according to Austin, sanction occupies an important place in the enforcement of law. People follow law due to sanction or coercive element inherent in law. Hobbes also subscribes to this view. In the view of Hobbes, Man is by nature nasty, brutish and violent and fear or sanction which is inherent in law is necessary to maintain order in society. Further, men need for their security “ A common power to keep them in awe and to direct their action to common benefit.” Holland, Bentham, Jethro Brown, or other jurist who deny the legal character of international law. According to this jurist, international law legs and effective legislative machinery, and executed machinery and potent judiciary and above all the sanction which is necessary for the enforcement of law.
 
The definition of law given by Austin is not correct. In the words of Prof. Oppenheim, “ this definition is not correct. It does not cover that part of municipal law which is termed as unwritten or customary law. There is, in fact, no community and no State in the world which exists with written law only.” In his view, law is, “ A body of rules of human conduct within a community which by consent of his community shall be enforced by external power.” Brierly and Prof. Hart have also criticised the Australian definition of law.
 
According to Brierly, “ unless we distort facts so as to feed them into the definition, it cannot account for the existence of English common law.” further, Sir Frederick Pollock writes, and as probably most competent jurist would today agree, the only essential conditions for the existence of law are a political community and the recognition by its members of settled rules binding upon them in that capacity, international law seems on the whole to satisfy these conditions.” Criticising the Australian definition of the “law”, Prof. H.L.A. Hart has also written that this concept plainly approximates closer to penal statutes enacted by legislature of a modern State than to any other variety of law.”
 
According to Oppenheim, The existence of law presupposes the existence of three pre requisites: 1. A community, 2. A body of rules; 3. Common consent of the community that if necessary these rules shall be enforced by an external power. As pointed out in the ninth edition of Oppenheim’s International law (1992), “ The three requirements of this definition satisfied by international law, to a greater or lesser extent. The States of the world do together constitute a body bond together through common interests which create extensive intercourse between them, and differences in culture, economics structure a political system, do not affect as such the existence of an international community as one of the basic factors of international law. Rules for conduct of the members of that Community exist and have existed for hundreds of years. Equally, there exist a common consent of the community of states that rules of international conduct shall be in forced by an external power, though in the absence of a central authority for this purpose states have sometimes to take law into their hands by such means as self-help and intervention…” further, outlying of resort to force by the United nation and the steps for international enforcement action have led to less reliance on self-help.
 
Most of the jurist now subscribe to the view that international law is a law. It has been pointed out that sanction is not an essential element of law. Even if it is regarded as an essential element, it would be wrong to say that international law has no sanction behind it. Brierly has rightly pointed out, “ it is both practically inconvenient and also contrary to the best jurist thought to deny its legal character.” Views of the jurist, who regard international law has really law may be summed up as follows:-
 
1.      The term law cannot be limited to rules of conduct enacted by a sovereign authority. It has been established by historical jurisprudence that in many communities a system of law adjusted although such communities lacked a formal legislative authority. As pointed out by Starke, such law did not differ from any state law with true legislative authority.
2.      As pointed out by Oppenheim, in practice, international law is recognised as law by States and they consider it binding on them.
3.      Even when the states violate international law the never questions its legal existence or legal character. On the contrary, they try to interpret the rules of international law so as to justify their conduct.
4.      The Austinian concept of law fails to account for the customary rules of international law.
5.      In the modern times, customary rules of international law are diminishing and are being replaced by lawmaking treaties and conventions.
6.      When international disputes arise, states, instead of relying on moral arguments based their arguments on the provisions of duties, presidents and opinion of jurists.
7.      In some states, for example USA and UK, international law is treated as a part of their own law.
8.      The statute of International Court of Justice provides that the court shall decide such disputes as are submitted to it in accordance with international law.
9.      International conferences and conventions treat international law as law in the true sense of the term.
10.   The United Nations is based on the true legality of international law. The preamble to the United Nations expresses the resolve of the member states to “ established conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.”
11.   It is also pointed out that sanction is not an essential element of law. It is also a fact that people generally follow law as a matter of habit and practice. However, international law is not completely without sanction although the sanction behind it are weaker as compare to State law. International law operates in decentralise system. Each State is sovereign and equal in the eye of law. Article 59 of the statute of International Court of Justice provides that the decision of the International Court of Justice shall not be binding except upon a party to a dispute and only in respect of the particular dispute. The decisions of the international Court of Justice are bending upon the parties to the dispute. In case any party fails to comply with the decision, the Security Council on the request of other party may make recommendations or decide upon measures to be taken to give effect to the judgement. Besides this, war, reprisals etc have been regarded as sanction behind international law. Chapter 7 of the United Nations charter towards for international enforcement action. Besides United Nations charter, each and every international organisations such as ILO, WHO, FAO, ICAO ITC has certain sanction in its constituent treaty.
12.   Public opinion is also considered as the ultimate sanction behind the bending force of international law and for that matter, behind any law.
13.   Those who denied the legal character of international law emphasise it is frequently violated. It is true that international law is frequently violated but it does not mean that it is not law. Even state or municipal law is frequently violated. Frequency of violations of law and the question of international law: being law are two different things. Frequency of violations is connected with the weakness or strength of the enforcement machinery. Though State or municipal law is frequently violated, it is never said that it is not law. What is true of municipal law should also hold good for international law.
 
Conclusion
 
On the basis of the above argument it may be concluded that international law is in fact law. International law operates entirely in different settings. It operates in a decentralised system. Prof. Hart has rightly remarked that no simple deduction can be made from necessity of organised sanctions to Municipal law in its setting of physical and psychological facts, to the conclusion that without them international law, in its every different setting imposes any obligation, if not binding and so not worth the title of ‘law’. As aptly remarked by Louis Henkin, “ much of the misunderstandings of international law is due to failure to recognise law where it exists”. Further, fortunately, international law exists and it work not perfectly or always but well enough and often enough to make a considerable difference in the conduct of international affairs. Although there is no one to determine and adjudge the law, there is a wide agreement on the consent and meaning of law and agreements, even in a divided world burgeoning with new nation.
 
According to Starke, International law is a ‘weak law’ because existing international legislative machinery operating mainly through lawmaking conventions is not comparable in efficiency to state legislative machinery. Much of the controversy relating to international law is due to the fallacy that the system of municipal law is an ideal one and all legal systems and for that matter international law also must conform to that ideal. Municipal law operates in centralised system whereas international law operates in a decentralised system. The comparison is therefore not a happy one. International law must be understood in its own setting and the system in which it operates. It is as strong as effective as it can be under the system in which it operates.
 

Source :  Intolegalworld Whether International Law True or Not

LC 0703 Treaties and Customs as a Source of International Law

 Treaties and Customs as a Source of International Law

Anomitra Debnath^[1]

“No man is an island.”

(John Donne)

The global interconnectedness of the 21^st century is far more than a stone’s throw away from when man and his habitus was truly an island—at the beginning of time as we remember it. The phenomenon of international law, as the body of legal rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as international actors^[2], is a testament to this very fact. The sheer interdependence and reliance on which nations are built and thrive provide the basis for the sustenance of international law. However, this body of law is hardly a static entity. To the contrary, it is very much vital and dynamic in that it continues to adapt and cater to the needs of society as we progress through a series of cultural and moral evolutions. Needless to say, the sources of creation of international laws must necessarily keep pace with the aforementioned societal evolutions. Herein, it becomes pertinent to dissect and discuss the relevant sources and their gravity in governance.

 

Sources of International Law

Although, there is no formal literature that explicitly lists the sources of international law per se, the statute of the International Court of Justice does identify certain categories as the basis for deciding international disputes. It is to this extent that Article 38 of the statute of the International Court of Justice^[3] identifies the sources of international law and states that,

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: 

a.     international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; 

b.     international custom, as evidence of a general practice accepted as law; 

c.     the general principles of law recognized by civilized nations; 

d.     subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 

Hence, the sources of international law may be summarised as international treaties and conventions, international customary law, the general principles of natural law as recognized by nations, and judicial decisions and teachings of authority.

Hierarchy of Sources

The hierarchy of preference of sources may be simplified to say that the primary sources of international law are international treaties and conventions and international customary law, supplemented by the principles of natural law and auxiliary judicial decisions and teachings of authority. However, this is further supplemented by other principles such as that specific rules take precedence over general rules; and that recent decisions supersede old ones. Nevertheless, it is generally accepted that international treaties and conventions as well as customary law are of prime importance and gravity in the formulation of international law. Furthermore, these are the two pertinent sources within the scope of discussion hereinafter.

 

International Treaties and Conventions

According to Article 2 of the Vienna Convention on the Law of Treaties which outlines the role of international treaties and conventions as a source of international law, 'treaty' means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.^[4] Basis of Treaties

Treaties are generally considered as persuasive law that confers obligations on parties to it. However, the question of whether a treaty is ipso facto law or merely a legal obligation is a distinct debate altogether. Regardless, neither perspective takes away from the fact that treaties are based on the time-tested and enduring principle of ‘pactasuntservanda’ or ‘agreements must be kept’.It is this very principle that demands obedience to treaties ratified by nations and essentially forms the indispensable foundation of a just system governing sovereign nations as equals.  Nature of Treaties

The question of whether a treaty is law or a set of contractual obligations amongst sovereign nations leads us to the dichotomy in the nature of treaties. Thus, treaties may be of two kinds—

1.     Law-making Treaties: These are multilateral treaties and mainly intend to have universal or general relevance.

2.     Treaty-Contracts: These treaties apply only between two or small number of states. They are mainly bilateral treaties.^[5]

Inspite of the existence of this classification, there is not much effectual distinction made by the difference in nature of treaties. Both contractual as well as obligations in the form of law have authority and nations agree to be bound by them. Hence, both bilateral and multilateral treaties essentially affect countries that are party to it in the same way—they are persuasive and binding in nature.

For the sake of clarity, it may be said that multilateral treaties conferring legal obligations that a multiplicity of nations agree to be legally bound by confer the authority of international law upon the treaty in effect whereas, bilateral treaties or such treaties as those that have a narrower scope of application generally bear closer resemblance to contracts conferring contractual obligations on nations rather than international law as we speak of it; although in reality, they bind the behaviour of nations in nearly the same way.

Mechanisms governing Treaties

The Vienna Convention on the Law of Treaties is the principal instrument detailing the mechanisms that govern treaties. Thus, treaties too are subject to certain rules that decide their application and authority.

Firstly, treaties are consent-based inthe sense that states voluntarily agree to be bound by the terms of a certain treaty; that is, they consent to a treaty. A state is only governed by a treaty if it has ratified it, though there are exceptions to this. For example,delimitation of territorial boundaries is applicable on all states who must respect it, i.e. it is ‘ergo omnes' or ‘against the whole world’.The means of expressing consent is dealt with in Article 11 of the aforementioned Vienna Convention, which states that ‘the consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed’.^[6]

Reservations, Declarations, and Derogations

The purpose of a treaty is to encourage countries to be signatories to it and increase its universality of application so as to hold countries to the same standard of justice. However, the process of drafting an international treaty is cumbersome and drawn out owing to the number of states that are involved in the process and the resultant multiplicity of viewpoints. The process of drafting a treaty includes stark disagreements and debates upon every aspect of the agreement. In order to increase the number of signatories and ratifications of a treaty, and hence global order, international law allows a system of picking and choosing for nations wherein they may limit application of certain provisions of the agreement under consideration. This is done through reservations, declarations and derogations.^[7]

Reservationsare            defined            by            the            Vienna                                   Convention        as:

‘A unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.’^[8]

Only specified reservations are permitted and they cannot undermine the object and purpose of the Treaty.

Declarations, unlike reservations, do not affect legal obligations, but are often made when a State expresses its consent to be bound by a specific treaty. The State uses the declaration to explain or clarify its understanding of particular aspects of the treaty text.  

Derogations allow for a system where countries can make space for certain situations and exigent circumstances whereupon the effect of the provisions of a treaty may be suspended or otherwise derogated. For instance, in a situation of war or internal conflict, the right to assemble peacefully may be suspended. However, some basic human rights cannot be derogated from under any circumstances, notably the prohibition on torture, inhumane and degrading treatment. This ensures basic protection of rights.

 

International Customary Laws

The statute of International Court of Justice refers to “international custom, as evidence of a general practice accepted as law,” as another formal source of international law. However, any general practice is not termed as customary law and certain essential criteria is present which must be satisfied in order for a custom to attain recognition as international customary law.

Criteria 

For a custom to be authoritative as law, it must fulfil two essential conditions.

1.     State practice

The actual practice of states includes multifarious elements such as duration, consistency, repetition, and generality of a particular kind of behaviour by states. For any custom to become law, it is essential that continuous or established usage be established for a significant time period. This requirement is termed as ‘usus’.

Notably, however, in the North Sea Continental Shelf cases in 1969^[9] ,the ICJ expressly accepted the possibility that a wide spread and representative practice could generate a rule of customary international law even without the passage of any considerable period of time. This is referred to as instant customary law.

2.     Acceptance of legal nature of practice

This is also referred to as ‘opinio juris’ and is rooted in the principle that for a custom to be accepted as law, it is not merely enough that a practice has long and established usage. Such usage must also possess, in addition, the recognition of the practice as legal and not merely a matter of policy by states. As was pointed out in the North Sea Continental Shelf Cases^[10], ‘Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.’ 

Effect

Once a custom becomes international law, all states must comply with it irrespective of whether they have explicitly consented to it or not. The only exception that may be made is if a certain state has objected to the custom or usage from its very inception. Evidence of such objection must then be demonstrated and this evidence must be of sufficiently weighty nature. Thus, states are obliged to behave in accordance with international customary law; there is no choice to comply as in the case of treaties or conventions. This may be observed to be the primary advantage of customary law over treaty law.

 

Conclusion

From the above discussion, it is clear that neither source—treaty or custom—is exhaustive in the creation of international law. Each is fraught with its own flaws where treaties are dependent on ratification by countries and customs are slow in birth and evolution. Moreover, customary law is not as easy to establish and requires widespread practice and acceptance as well. However, a synthesis of treaties and customs greatly reduces the drawbacks of each standalone source and hence results in an enhanced source of law that is far more effectual than its components. As such, treaties and customs consolidate their positions as indispensable sources of international law and justify the position of importance accorded to them in the system of internation

---

[1] B.A.LLB.(Hons.), 1^st Year, Hidayatullah National Law University, Atal Nagar, Raipur.

[2] Malcolm            Shaw,International            Law,BRITANNICA,(23    June,               2019,     5:15       PM), https://www.britannica.com/topic/international-law.

[3] Statute Of The International Court of Justice, INTERNATIONAL COURT OF JUSTICE, ( 23 June, 2019, 4:34 PM),https://www.icj-cij.org/en/statute.

[4] Vienna Convention Treaties, OAS, (23 June, 2019, 3:40 PM), https://www.oas.org/legal/english/docs/Vienna conventionTreaties.html.

[5] Marlon Konchellah, Customs and Treaties Of International Law, LEGAL MIND, (23 June, 2019, 2:20 PM), http://mkonchellah.blogspot.com/2011/03/customs-and-treaties-as-source-of.html.

[6] The      Sources of           International        Law,       LAW        TEACHER,             (23               June,      2019,     10:00     AM), https://www.lawteacher.net/free-law-essays/international-law/the-sources-of-international-law.php.

[7] Sources of International Law,DIAKONIA, (23 June,2019, 1:00 PM), https://www.diakonia.se/en/IHL/TheLaw/International-Law1/Sources-of-IL/.

[8] Vienna Convention Treaties, OAS, (23 June, 2019, 3:40 PM), https://www.oas.org/legal/english/docs/Vienna conventionTreaties.html.

[9] North Sea Continental Shelf Cases, INTERNATIONAL COURT OF JUSTICE, (21 June, 2019, 3:44 PM), https://www.icj-cij.org/files/case-related/51/051-19690220-JUD-01-00-EN.pdf

[10] Id.

Source  : legalpedia : Treaties and Customs

LC 0703 International Law and Municipal Law

International Law and Municipal Law

The state plays a vital role in the governance of the country. Learn about the International and Municipal Laws with its theories in this article.

 

The state plays a vital role in the governance of the country. Traditionally, the state’s defined role had merely local laws to govern the state. The laws were only limited to protecting the citizens of the country. But, as there was the evolution of societies, international laws also became necessary for the society to make cordial relations with them. 

Therefore, the state’s role became complex and not limited to the inner administration. It has to reduce rivalries among various states as there is massive interdependence among the states as a part of globalisation. So, all these factors lead to the emergence of international laws. So, all these factors lead to the emergence of international laws. But, at the same time, there emerged a conflict as to which law is superior and which is to be overruled. We must understand the relationship between international and municipal laws for this answer.

What is International Law?  

International laws are a set of rules, regulations, norms, and principles for a state accepted internationally as a guideline for a state to interact with another state in various sectors such as war, diplomacy, human rights, trade, and other matters. In other words, according to Black Law’s Dictionary, it is a system that governs the relationship between nations which considers individuals and international organisations. Some international laws are Sea law, Treaties among the countries, international laws for criminals, and many other laws. 

There are two branches of International Law: 

• Jus Gentium: It is a body or organisation that makes the law applicable to all the nations of the world. 
• Jus Inter Gentes: It is related to the agreements between two nations that do not apply to other nations.  

What is Municipal Law? 

According to Black Law, it is the ordinance and laws applicable in the city, town, and other local entity of the society. Therefore, a municipal law is considered a local or national law applicable within a defined territory. It is for the domestic and internal purposes of a sovereign state against the essence of international law.  

Relationship between International and Municipal Laws

It is always essential to study the relationship between international and municipal laws because there are some instances where international law becomes a part of domestic law. So, if such a situation arises, which rule must be followed? To explain such a situation, you must understand the relationship between these two laws, and for this, there are some theories. 

Dualism

Dualism is a theory that considers local or municipal law and international law as two different branches of law. According to this theory, as per their sources, principles, and subjects, these two laws must act independently. It stresses the rules that international and municipal law exists in two different scenarios, and therefore they do not overrule each other.

According to the dualism theory, any international law cannot affect an individual from the state until it has been transformed into a state or domestic law. The transformation of such laws is the crucial doctrine of dualist theory.  

Monism

As the name suggests, the monist approach considers laws as a single entity, and they are against the idea of separating these two branches as international and municipal laws. The monist theory is based on the Kantian philosophy of law which follows the unitary conception for laws. It says that the laws are derived from one single source, and any local or domestic law contradictory to international law is invalid. It does not believe in the claim of dualism that there is a need to transform international law into municipal law. 

The example for this claim is that if a state has ratified the international law of human rights, and any municipal law violates an individual’s freedom, that person can claim that the municipal law violates the international law. So, in this case, the municipal law will be considered invalid, and international law prevails. This theory always considers international law superior to municipal laws, and if any conflict arises between these two laws, international law will prevail. 

Specific Adoption Theory

This theory is related to the dualist theory. It claims that international laws can only be applied in domestic laws when adopted explicitly by domestic laws. There is a requirement for the transformation of international law into municipal law. 

Delegation Theory

This theory explains that there are constitutional provisions in international laws, which claims that it is on the state to decide which international law must be applied to the internal matters of the state or individual and in which condition. So, here the power is in the state to decide which international law is applicable in its municipal law. There is no superiority concept in this theory. 

Harmonisation Theory

It is a separate approach from the dualist and monist approach. It was formulated by Rousseau and Fitzmaurice, who tried to explain that each law is supreme in its sphere. The dualist and monist theory does not successfully define the relationship between international and municipal laws as to which law is superior to others. Harmonisation theory explains that if there is any conflict between municipal and international laws, domestic laws will be applicable in the domestic sphere and separate the state’s obligations to the international laws. It suggests that the courts must try to minimise the differences between these two laws through the harmonisation process, ultimately leading to equivalent positions for both these laws. 

Conclusion 

The debate of the relationship between international and municipal law is complicated. Every state has to oblige the international treaties and face the brunt of its breaches. However, they also maintain their municipal laws separate from the international treaties. Still, we can find the penetration of international laws into municipal laws, and therefore this debate is intensified. It is seen in the world that states practice international law when it is in their favour, and thus, it minimises the differences and intensifies the harmonised judicial process. 

 

Source : Unacademy : International and Municipal Law