INTERNATIONAL LAW

L. OPPENHEIM defines International Law as,

"Law of Nation or International Law is the
name for the body of customary and
conventional rules which are considered
legally binding by civilized states in their
relation with each other, within a
community which by common consent of
this community shall be enforced by
external power".
INTERNATIONAL LAW
Public International Law has been defined by
J.G. Starke as "that body of Law which is
composed for its greater part of the
principles and rules of conduct which
states feel themselves bound to observe,
and therefore, do commonly observe in
their relations with each other."
INTERNATIONAL LAW
According to the Blacks Law Dictionary
International Law is defined as:
"The legal system governing the
relationship between nations; more
modernly the Law of International
relations, embracing not only nations but
also such participants as International
organizations and individuals (such as
those who invoke their human rights or
commit war crimes)".
 MUNICIPAL LAW
The Blacks Law Dictionary, defines the
term Municipal Law as:
"The ordinances and other laws applicable
within a city, town or other local
government entity".
Thus Municipal Law is the acts made by
the legislature or the Law making authority
of a state, applicable to that state alone.
INTERNATIONAL LAW
AND MUNICIPAL LAW
International Law Whereas
is largely but not Municipal Law
altogether controls relations
concerned with between
relation among individuals within
states; a state and
between
individuals and
the state.
 INTERNATIONAL LAW AND
MUNICIPAL LAW REGARD TO THE
RELATIONS THEY REGULATE.
International Law, Municipal Law
on the other hand, regulates relations
regulates relations between the
between the individuals under
member States of the sway of the
the Family of respective State
Nations. and the relations
between this State
and the respective
individuals.
 INTERNATIONAL LAW AND
MUNICIPAL LAW WITH REGARD TO THE
SUBSTANCE OF THEIR LAW

Law of Nations Whereas

is a Law not Municipal Law
above, but is a Law of a
between Sovereign over
Sovereign individuals
States. subjected to his
way.
 MONISM
Monists hold that International Law and State
Law share a common origin-namely Law.
The scholars and followers of this theory is
called Monists.
According to Monism, International Law is
directly applicable in the National legal order.
There is no need for any Municipal
implementing legislation; International Law is
immediately applicable within National legal
systems unlike Dualism, without any
incorporation or transformation.
 MONISM I
Monistic I Theory was developed by German
scholars namely Moser, Hegel, Bergbohm, Zorn,
Wenzel in late 18th and early 19th centuries.
Monism I is of ideology that though both
International and Municipal laws are laws and are
applicable, Municipal Law principle are somewhat
superior when compared to International Law.
There exist only one set of legal system or the
doctrine of legal order and International and
Municipal are two branches of a single tree serving
the needs of human community in one way or the
other. Both laws emanate from a unified knowledge
of Law and are the species of same genus-Law.
 MONISM II
Monism II theory was found by Kaufmann, a German
philosopher, in the year 1899.
Monism II slightly different and is the latest and widely
accepted theory of Monism. It emphasis on supremacy of
International Law in the system. Though both International and
Municipal laws are laws and are applicable, Monism II
advances the idea that International Law principle are
somewhat superior when compared to Municipal Law.
It stresses on the fact that the International rules, takes
precedence over National legislation, and automatically repeal
any National laws contrary to them. This theory got squashed
by the more sophisticated and realistic theory of Triepel
(Founder of the Theory of Dualism). This theory according to
Antonio Cassese, looked more like aspiration than a description
of reality.
 DUALISM
Dualism theory was developed by a German scholar
Triepel and an Italian scholar Anzilotti.
The important principle of Dualism is that, International
Law and Municipal Law are two separate and distinct
orders, in their objects and spheres of operation, such that
the norms of one would not operate within the realm of
the other without a positive act of reception or
transformation, as the case may be.
The International Law and Municipal Law are two
entirely different things and the International Law can
never be applied in the state without incorporating or
transforming it into Municipal Law.
In Dualism, at no circumstances, the International Law
can prevail over the Municipal Law, and it is the
Municipal Law which is always supreme.
 DUALISM
The subject of the Municipal Law is primarily
individuals and groups, and that of International
Law is states.
The Sources of Municipal laws are parliamentary
enactments and courts decision, and for
International it is treaties, customs and general
principles of Law recognised by the civilized
nations.
The main function of Municipal Law is regulating
internal functioning of the state, relation between
the state and the individual, and function of
International Law is to supervise the relations
between states.
 DIFFERENCES BETWEEN
MONISM AND DUALISM
In philosophical terms, monism is that talks of oneness of the
soul and dualism is that talks of two entities, individual and
supreme soul.
When monism speaks of the oneness of existence, the term
dualism does not endorse this view.
Monism believes in the fusing of the self into supreme self. On
the contrary, the term dualism does not believe that the
individual self unites with the supreme self.
In International Law, monism believes that International and
National legal systems can become a unity. Dualism states that
there is a difference between internal and International Law.
There is no need for translating the International Law into a
National Law in a monist state. Unlike monism, there is a need
for the translation of International Law into National Law.
Unless the translation takes place, the International Law is not
accepted.
CRITICISMS OF MONISM
AND DUALISM
The criticism of Monistic Theory I is that, it is
devoid of scientific value and intended to underpin
ideological and political positions.
The criticism of Monistic Theory II is that, it is
nice in theory, but really utopian and did not reflect
reality. But it had important psychological impact
and helped to introduce idea of responsibility of
state officials as individuals.
The criticism of Dualistic Theory is that, it did
reflect legal reality of 19th and 20th century, but
couldnt explain some things, like the fact that
some intl rules do impose obligations on
individuals (e.g. piracy).
 TRANSFORMATION
THEORY
International Law undergoes transformation as it spreads
universally. Unless transformed, it cannot be applied to
Municipal Law. States incorporate treaties and norms into
their Municipal laws by specific "transformational"
devices.
The automatic incorporation of ratified treaties by
constitutional provision, which has been called general
transformation, mandates Municipal enforcement without
legislative action beyond ratification.
This theory is also called as the Automatic standing
incorporation of International rules. In this theory, such
incorporation occurs if National constitution / Law says
that all state officials as well as National and other
individuals living in the territory of the state are bound to
apply certain present or future International Law.
Filartiga v. Pena Irala
The case of Filartiga v. Pena Irala, heralded a trend
towards the Municipal incorporation of customary
International Law. The Filartiga court recognized that the
Law of nations is a dynamic concept, which should be
construed in accordance with the current customs and
usages of civilized nations, as articulated by jurists and
commentators. It held specifically that U.S. Law directly
incorporated customary International Law principles
prohibiting deliberate government torture. Moreover, in
the most controversial aspect of its opinion,
the Filartiga court held that an old rarely invoked federal
jurisdictional statute, the Alien Tort Statute, created an
implied right of action for violations of customary
International Law.
Paquete Habana Case
In Paquete Habana, the Court reaffirmed the
Municipal status of customary International
Law in the United States. Relying on scholarly
sources, the Court acknowledged a long-held
customary norm against seizing the coastal
fishing vessels of a belligerent. The court held
that International Law is part of the United
States Law, and must be ascertained and
administered and administered by the courts of
justice of appropriate jurisdiction as often as
questions of right depending upon it are duly
presented for their determination.
SPECIFIC ADOPTION THEORY

A second method, special adoption, requires legislation in

order to give treaties Municipal effect. Specific Adoption
Theory says that International Law cannot be applied in
sovereign states unless and until the sovereign state specifically
adopts that Law by way of enactments. Positivists support this
theory.
For example, International Covenant on Civil and Political
Rights and International Covenant on Economic, Social and
Cultural Rights have been adopted in India under
the Protection of Human Rights Act, 1993.
In the absence of special agreements, a State will decide how to
carry out its International obligations. For example, in
the United States, the Federal government will decide whether
an agreement is to be self-executing or should await
implementation by legislation or appropriate executive or
administrative action.
 SPECIFIC ADOPTION
THEORY
In this theory, International rules become applicable
within the State legal system only if and when the relevant
parliamentary authorities pass specific implementing
legislation.
Such legislation can be:
a) Act of parliament translating treaty provisions into
National Law (statutory incorporation). Sets out in detail
the various obligations, powers, and rights stemming
from the International provisions.
b) Act of parliament which simply enjoins the
automatic application of the International rule within
the National legal system, without reformulating the
international rule being incorporated (automatic
incorporation).
DELEGATION THEORY
International Law delegates the rule-making
power to each State accordance with the
procedure and system prevailing in each
state in accordance with the Constitution
and Rules of the Treaty or Convention that
member states sign and agree upon.
 EMERGING TRENDS
International Law, no longer constitutes a sphere of Law tightly separate and
distinct from the sphere of Law of National legal systems. It isnt a different
legal realm from National Law, it has had a huge daily direct impact on
National Law. Many International rules now address themselves directly to
individuals, without intermediary of National systems (e.g. International
crimes) or grant individuals rights before International bodies (e.g. right to
petition).
International Law is no longer jus inter potestates (Law between states), it also
embraces individuals. Intl Law gradually headed towards a civitas maxima
(human commonwealth encompassing individuals, states, and other aggregates
cutting across state boundaries).
International Law is increasingly becoming a jus inter partes (a body of Law
governing relations among subjects in a horizontal manner), rather than a jus
super partes (Law governing from above).
Choice of mechanism for applying International rules is the acid test for
finding out how states feel about International values. States sensitive to
International demands opt for automatic standing incorporation mechanisms
of customary Law, treaty rules, and decisions of International organizations.
Very few countries adopt such an overall internationalist outlook. Greece,
Netherlands and Spain stand out as countries which do.
 Most states still take a nationalist approach to the implementation of
International Law. They do not make International values prevail over
Municipal interest and concerns, they put International Law on same
footing as Municipal Law. In UK it is the parliament that is supremacy
over International Law. France and Russian Federation customary Law
prevails over Municipal Law, but not treaty Law.
Most states do not accord primacy to International rules in their
National legal systems. This shows that they do not want to tie their
hands formally with International rules, but does not necessarily mean
that they dont usually follow International rules.
Courts may play a crucial role in ensuring compliance at National
level with International legal standards. They can use two interpretive
tools presumption of in favour of International treaties and
presumption that treaty-implementing National Law is special.
This can advance International Law over Municipal Law.
Furthermore, there are more International rules that address
themselves directly to individuals, either by imposing obligations or
granting rights. These International rules reach individuals directly, not
via Municipal Law. Passing of Municipal Law regarding body of
individual International Law, bolsters this body of Law, but does not
create these rights and obligations. Individuals acquire them
automatically, bypassing state.
By
Gokul Sundar. K. Ravi.