Q.

Explain the relationship between International Law and

Municipal Law.

International Law is the law which governs the Relations of sovereign independent States inter se
Municipal law or State law or national law is the law of a State or a country and in that respect is
opposed to International Law which consists of rules which civilized States consider as binding upon
them in their mutual relations. Kelsen observes that national law regulates the behavior of individuals
International law the behavior of States or as it is put whereas national law is concerned with the
international relations the so called domestic affairs of the State. International Law is concerned with
the external relations of the State its foreign affairs.

Legislature and court systems are different on the international and municipal levels. Where the
municipal level uses a legislature to help enforce and test the laws, the international court system relies
on a series of treaties without a legislature which, in essence, makes all countries equal.

Enforcement is a major difference between municipal and international law. The municipal courts have
a law enforcement arm which helps require those it determines to follow the rules, and if they do not
they are required to attend court. The international court system has no enforcement and must rely on
the cooperation of other countries for enforcement.

There is a divergence of opinion on the question as to whether International Law and Municipal Law
on the various national laws can be said to form a unity being manifestations of a single conception of
law or whether International Law constitutes an independent system of law essentially different from
the Municipal Law. The former theory is called monistic and the latter dualistic.

Monistic Theory: Monists assume that the internal and international legal systems form a unity. Both
national legal rules and international rules that a state has accepted, for example by way of a treaty,
determine whether actions are legal or illegal. In most monist states, a distinction between international
law in the form of treaties, and other international law, e.g. jus cogens is made. International law does
not need to be translated into national law. The act of ratifying the international law immediately
incorporates the law into national law. International law can be directly applied by a national judge,
and can be directly invoked by citizens, just as if it were national law. A judge can declare a national
rule invalid if it contradicts international rules because, in some states, the latter have priority. In other
states, like in Germany, treaties have the same effect as legislation, and by the principle of lex
posterior, only take precedence over national legislation enacted prior to their ratification. In its most
pure form, monism dictates that national law that contradicts international law is null and void, even if
it predates international law, and even if it is the constitution.It maintains that the subject of the two
systems of law namely, International Law and Municipal Law are essentially one in as much as the
former regulates the conduct of States, while the latter of individuals. According to this view law is
essentially a command binding upon the subjects of the law independent of their will which is one case
is the States and in the other individuals. According to it International Law and Municipal Law are two
phases of one and the same thing. The former although directly addressed to the States as corporate
bodies is as well applicable to individuals for States are only groups of individuals.
Dualistic theory: Dualists emphasize the difference between national and international law, and
require the translation of the latter into the former. Without this translation, international law does not
exist as law. International law has to be national law as well, or it is no law at all. If a state accepts a
treaty but does not adapt its national law in order to conform to the treaty or does not create a national
law explicitly incorporating the treaty, then it violates international law. But one cannot claim that the
treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it. National
laws that contradict it remain in force. According to dualists, national judges never apply international
law, only international law that has been translated into national law. According to the dualist view the
systems of International Law and Municipal Law are separate and self contained to the extent to which
rules of the one are not expressly or tacitly received into the other system. In the first place they differ
as regards their sources. The sources of Municipal Law are customs grown up within the boundaries of
the State concerned and statutes enacted therein while the sources of International Law are customs
grown up within the Family of Nations and law making treaties concluded by its members. In the
second place Municipal Laws regulates relations between the individuals under the sway of a State or
between the individuals and the State while International Law regulates relations between the member
States of the Family of Nations. Lastly there is a difference with regard to the substance of the law in
as much as Municipal Law is a law of the sovereign over individuals while International Law is a law
between sovereign State which is arrived at an agreement among them. The latter is therefore a weak
law.

Besides the above two theories, Starke makes reference to two other theories namely, the
Transformation Theory and Delegation Theory.

Transformation Theory: According to this theory it is the transformation of the treaty into national
legislation which alone validates the extension to individuals of the rules set out in international
agreements. The transformation is not merely a formal but a substantial requirement. International
Law according to this theory cannot find place in the national or Municipal Law unless the latter allows
its machinery to be used for that purpose.

This theory is fallacious in several respects. In the first place its premise that International Law and
Municipal Law are two distinct systems is incorrect. In the second place the second premise that
International Law binds States only whereas municipal law applies to individuals is also incorrect for
International Law is the sum of the rules which have been accepted by civilized states as determining
their conduct towards each other and towards each others subjects. In the third place the theory regards
the transformation of treaties into national law for their enforcement. This is not true in all cases for
the practice of transforming treaties into national legislation is not uniform in all the countries. And
this is certainly not true in the case of law making treaties.

Delegation Theory: According to this theory there is the delegation of a right to every State to decide
for itself when the provisions of a treaty or convention are to come into effect and in what manner they
are to be incorporated in the law of the land or municipal law. There is no need of transformation of a
treaty into national law but the act is merely an extension of one single act. The delegation theory is
incomplete for it does not satisfactorily meet the main argument of the transformation theory. It
assumes the primacy of international legal order but fails to explain the relations existing between
municipal and international laws.
It is settled by the leading English and American decisions that International Law forms part of the
municipal law of those countries. The United States has unambiguously applied the doctrine that
International Law is part of the law of the land. All international conventions ratified by the USA and
such customary International Law as has received the assent of the United States are binding upon
American Courts even if they may be contrary to the statutory provisions. There is a presumption in
cases of conflict that the United States Congress did not intend to overrule International Law.

Position in India
In India, SC has held in several cases such as Vishakha vs State of Rajasthan, Randhir vs Union of
India, Unnikrishnan vs State of Karnataka, that domestic laws of India, including the constitution are
not to be read as derogatory to International law. An effort must be made to read the domestic law as
being in harmony with the international law in case of any ambiguity. At the same time, the
constitution is still the supreme law of the land and in case of any directly conflict the constitution will
prevail.

Q.Sources of International Law?

A.

1) Introduction :

According to some of the eminent jurists following are the Sources of International
Law

Lawrence: According to Lawrence, if we take the source of law means its beginning as law
having with all the authority required to give it binding force, then in respect of International
Law there is one source of law and that is consent of Nations. This consent may be either tacit
(custom) or express (treaties).

Oppenheim: Oppenheim also shares the opinion of Lawrence According to Oppenheim

Treaties and Customs are regarded as the exclusive sources of International Law.

Therefore the Sources of International law are two-fold, namely -

1 Express consent which is given when States conclude a treaty stipulating certain rules for the
future International conduct of the parties.

2 tacit consent, that is implied consent or consent by conduct.

Brierly: According to Professor Brierly the main Sources of International law are custom and
reason.

Westlake: Westlake also says that custom and reason are two sources of International law.
 According to Oppenheim treaties and customs are regarded as the exclusive sources of
International Law. Bariely and Westlake says that Main sources of International Law are Cause
and reason.

Statute of the International Court of Justice Article 38(1)

Sources of International Law are Identified in Article 38 (1) of the 1945 Statute of the
International Court of Justice (established by the Charter of the United Nations) defines the
Sources of International law as under:

(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.

Article 38 (2) Provides that the Article 38 (1) shall not prejudice the power of the Court to
decide a case ex aequo et bono (means in justice and good faith) if the parties agree thereto.

2) Sources of International Law :

A) International Conventions or Treaties:

It is the first and Important Source of International law. There is no Legislative organ in the
field of International Law, comparable to legislatures within the State, the enactments of which
could bind all the States. The Contracting Parties may, however, establish an international
organization by means of the treaty with authority to bind them by its resolutions or may even
lay down rules for their mutual conduct. In this sense, Multilateral treaties are a feeble
approach to International Character.

Treaties can be Divided Into 1) Law Making Treaties and 2) Treaty Contracts

1) Law making Treaty-

Law making treaties are those treaties which are entered into by a large number of States.
These are the direct source of International Law. These treaties are binding. Law making
treaties may be divided into i) treaty giving the rule of Universal International Law. ii) Treaty
giving general principles.

(i) Treaty giving the rule of Universal International Law - These treaties are signed by a
majority of the State. For Example United Nation Charter.
 (ii) Treaty giving general principles - These treaties are entered into and signed by a
large number of countries giving thereby general principles of International Like. Geneva
Convention on Law of sea and Vienna Convention on Diplomatic Relations, 1961 are
examples of such a treaty.

2) Treaty Contracts:

These are the treaties which are entered into by two or more States. The provisions of such
treaties are binding only on the parties to the treaty. Such type of treaties are also the source of
International Law because they help in the development of customary rules of International
Law.

It is criticised that the classification of treaties are misleading because they both create
binding rules. In conventions numbers of State, parties are involved. There is the majority of
state who abide by the obligation and agreed voluntarily. What is the role of the convention?
Do they really create rules, obligations? and principles of International Law? Or they merely
state the principle of that law?

Yes, it creates rules and principles of International Law. The basis is the common consent
of the States. There is no law making authority in the international sphere. The role played by
convention in the absence of such Law making Authority is significance. The International
convention goes one step ahead of customary rules.

There is no doubt about the fact that treaty stipulations override rules of International
customary law which are incompatible with them. This proposition received approbation in the
case of S.S Wimbledon 1923, where the Permanent Court of International Justice held that
treaty law takes priority over international Customary Law.

Conventional and customary rules of International Law are not the only source of
International Law, but they fill the gap in absence of law making authority.

B) Customs :

Custom is the older and original Source of International Law. It is as such Second
Important source of International Law. International Law Custom may mean a kind of qualified
practice, by the existence of a corresponding legal obligation to act according to this practice,
hence by the existence of the corresponding rule of International law. The customs are evolved
through the practices of and usages of the nation and their recognition by the community of
nations. Customary rules are those rules which are practiced by most of the States by way of
habit for a pretty long time.

International custom has developed by spontaneous practice and reflects a deeply felt
community of law. Its rules are regarded as possessing density and stability and it is the
repository of the general or common law of the nations.
C) The general Principles of Law:

There is another Source of International Law that is General Principles of Law. General
Principles are based on moral Principles and law of nature, it has relation with the State
Practice. The statute of the International Court of Justice (ICJ) Authorities the Court to apply
the general principles of law recognized by civilized nations in addition to international
conventions and custom, which are the two main sources of International law. It makes
national legal systems as a source of law for the creation of International Law.

The special arbitral tribunal between Germany and Portugal also applied the general
principles of law in the Maziua and Naulilaa case where the arbitrators observed that in the
absence of rules of International law applicable to the Facts in dispute, they were of opinion
that it was their duty to fill the gap by principles of equity fully taking into account the spirit of
International Law, which is applied by way of analogy and its evolution.

D) Judicial Decision:

According to Article 38 of the Statute of the International Court of Justice,

Judicial Decisions are subsidiary sources of International Law. They are not the automatic
sources of law. Judicial Decisions by International Court of Justice, Permanent Court of
Justice, International Arbitral Tribunal and Municipal Courts.

Article 59 of the Statute of the International Court of Justice expressly provides

that the decisions of the court have no binding force except between the parties and in respect
of that particular case. That means Judicial decisions are binding only on the disputed States.
Under the provisions of this Article, the Court is specifically required not to apply precedent or
doctrine of stare decisis in its decisions. ICJ became a persuasive value in the limited action.
The content of earlier decisions has some element of law and it is clarified, impartially,
ascertainly carried by International Court of Justice. How it Contributes in the development of
International Law. It is repeated application is relied upon. later on, it does not remain only
persuasive and it does convert into rules of International Law.

E) Text writers, Juristic Works and Commentators -

It is referred and relied on by International Court of Justice which author is quoted

in which decision. The opinion of jurist are also regarded as sources of international law but
they are subsidiary means for the determination of rules of international law. While deciding
the case, if the Court does not find any treaty or judicial decision or legislative act or any
established custom, the Court may take the help of opinion of jurist as subsidiary means for the
determination of rules of International law. Although juristic works are not an independent
source of law, sometimes juristic opinion lead to the formation of International law. It throws
light on the rules of International law and their writing makes it easier to frame a particular
rule. The value of juristic writings carries more weight particularly in those fields of
international law where treaty or customary rules do not exist.
 The Writings of Ayala, Gentilis Grotius, Vattel, Kent Zouche, etc have tended to
transform the transitory state of usages into custom and represented a strong element to
consolidate the customary law.

F) Equity

Equity is used in the sense of consideration of fairness, reasonableness and policy often
necessary of the sensible application of the more settled rule of law. Though equity cannot be
the direct source of International Law, It is of great importance in those fields where rules are
not readily available.

Some jurist says that it is not the formal source of law but it is a source of law. Equity
principles originate from culture and interest of State concerned, equity principles varies from
State to State. Equity in international law is uncertain. It is subjective, and to bring objectively
to the principles of equity as a principle of natural law are considered. The Concept of Equity
has been referred to in several cases.

G) Decision or determinations of the organs of International Institutions -

In the modern age the decisions or determination of the organs of international

Institutions are also treated as sources of International Law. In the view of constant change in
the forms and content of the International Law, International organisations have also became a
subject of International law. The decisions and determination of the organs of such institution
are also, therefore, regarded as the sources of International Law because they help in the
development of customary rules of International Law.