BA LLB VII - Semester

Public International Law

Unit I - Introduction
Introduction to International Law - I
Synopsis
 What is International Law?
 Sources Of International Law.
 What is Public International Law?
 What is the aim of International Law?
 Various Scholars on International Law
 Is International Law really a law?
a) Austin View
b) Oppenheim’s View
 What is Municipal Law?
 Relationship Between International and Municipal Law
a) Monism
b) Dualism
c) Case Laws
● Difference between Municipal and International Law?
● Conclusion

What is International Law?

International law is the term given to the rules which govern relations between states.

Despite the absence of any superior authority to enforce such rules, international law is
considered by states as binding upon them, and it is this fact that gives these rules the status of
law. So, for example, where a state wishes to avoid a particular rule, it will not argue that
international law does not exist, but merely that states have not agreed that such a rule is to be
binding upon them, or that the rule does not apply to the particular circumstances.

Unlike national or domestic law, international law is not set down in any legislation approved
by a parliament. Even multilateral treaties do not apply to all states, but only to those which
have consented to be so bound, by signing and ratifying or acceding to them. As a result, the
precise rules of international law are often more difficult to identify than national laws and may
be found in a variety of sources.

Article 38 of the Statute of the International Court of Justice directs the Court to apply the
following sources of law in deciding disputes:
"(a) international conventions, whether general or particular, establishing rules expressly
recognized by 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) … 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.”

What is Public International Law?

Every society, irrespective of its population, makes a legal framework (law) under which it
functions and develops. It is permissive in nature as it allows individuals to form legal relations
with rights and duties and restrictive in nature as it punishes the wrong-doers. These laws are
referred to as Municipal laws. The world today requires a framework through which interstate
relations can be developed. International Laws fill the gap for this.

The term ‘International law’, also referred to as Laws of Nations was first coined by Jeramy
Bentham in 1780. Every country is referred to as a ‘state’ in International Law.

Public international law deals mostly with the rights and responsibilities that countries have
toward each other. In international law, countries are usually referred to as “states.” Public
international law also applies to international organizations such as the United Nations (UN)
and the World Trade Organization (WTO).

Public international law sets the rules for issues that concern all humankind: the environment,
the oceans, human rights, international business, etc. Various international bodies enforce these
rules. For example, the International Criminal Court investigates and hears cases of people
accused of war crimes or crimes against humanity. This court applies “international criminal
law.”

The rules of international law are found in treaties, conventions, declarations, agreements,
customs, and other sources. For example, the Kyoto Protocol is an international agreement on
climate change. In this protocol, many countries have agreed to reduce their greenhouse gas
emissions in order to protect the environment.
What is the aim of International law?

The existence of international law is the result of increased interstate engagement. It mainly
aims to maintain international peace and security among different states. It also helps in:

1. Promotion of friendly relations among the member states (members of the International
community, for example, United Nations),

2. Providing for basic humanitarian rights,

3. To solve international problems through international cooperation,

4. To refrain the state from using threat or force over the territory of any other state to provide
for the right to self-determination to people,

5. To use peaceful methods to settle international disputes

Various Scholars on International Law

Various eminent scholars, international jurists, and subject experts gave their interpreted
definitions of International law. Most popular among them are as follows:

1. According to Prof. L. Oppenheim, “Law of Nations or International Law is the name for
the body of customary and conventional rules which are considered legally binding by the
civilized states in their intercourse with each other.”

2. As per Torsten Gihl, “The term International Law means the body of rules of law, which
apply within the International Community or society of States.”

3. As per J.L. Brierly, “The Law of Nations or International Law may be defined as the body
of rules and principles of action, which are binding upon civilized states in their relations with
one another.”

4. Gray said, “International law or the Law of Nations is the name of a body of rules which
according to their usual definitions regulate the conduct of states in their intercourse with each
other.”

5. In Queen v. Keyn (1876), Lord Coleridge, C.J., defined international law as “The law of
nations is that collection of usages which civilized States have agreed to observe in their
dealings with one another.”
Is International Law really a law?

It is one of the most controversial questions that has been debated and on which jurist’s
opinions hugely differ. One view considers international law not a true law, rather, a code of
rule of conduct backed by morality. On the other hand, international law is considered to be a
true law and is regarded as a law, similar to that of ordinary laws of a state, binding upon the
citizens.

Austin’s View – International law is not a true law

According to Austin, law is the command of the sovereign punished by sanctions in case the
command is violated by the individual. There must be a legislative authority enacting the rule
of conduct and enforcing physical sanction. So based on what he said, it can be concluded that
any rule which is not enacted by any superior or legislative authority, cannot be regarded as a
law and moreover, if laws are violated, sanctions must be imposed.

Based on that, it can be said that rules are only morally and ethically valid if they aren’t issued
by any sovereign authority. If we apply this theory to international law, we will see there is no
legislative power over the society, based on which Austin concluded that international laws
are merely based on ethics and morality and are not true law.

Oppenheim’s View – International law

According to him, laws are nothing but a body of rules for human conduct within a community,
which can be enforced by an external power if there’s a common consent of the community for
the same. Based on what he said, we can conclude that, firstly, there must be a community,
secondly, a body of rules of conduct governing the community must be there and thirdly,
common consent among the community for the rules to be enforced power must be present.
From this, we can conclude that it’s not necessary that rules should be enacted by a legislative
authority within the community for them to be legally binding.

What is Municipal Law?

 Municipal Law is the state domestic or domestic law of a sovereign state defined in
opposition to international law.
 Municipal law involves many stages of law, not only state law but also local,
territorial, regional, or local law.
 Municipal law is the law specific to a specific city or country and the government
bodies within those cities or countries.
Thus, Municipal Law is the acts made by the legislature or the Legislative authority of a state,
applicable to that state alone.
Relationship Between International and Municipal Law

1. Monism

2. Dualism

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.

In Short:

 Supported by Duguit, Kelsen, and Wright.

 Law is a unified branch of knowledge, applies to individuals and entities.
 International Law and Municipal Law are interconnected.
 All laws, national or international, are made for individuals.
 Criticism: States consider their municipal laws superior to International Law.

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.

In Short:
  Supported by Triepel and Anzilloti.
 International Law and Municipal Law are separate laws.
 Individuals are subject to Municipal Law, while States are subject to International Law.
 Municipal Law is based on the will of a State, while International Law is based on the
consensus of States.
 Criticism: States are not the only subjects of International Law.
 Germany is an example of a state that follows the Dualistic Theory. In German legal
doctrine, there is a clear distinction between international law (“Völkerrecht”) and
domestic law (“Inlandsrecht”).

Cases

 Shri Krishna Sharma v The State of West Bengal: In this case, the Calcutta HC came
up with the view that if the Indian statutes are in conflict with the international law,
then the Indian Courts will have to obey the law of their land. In adopting such the
courts will look that such interpretation does not come in conflict with the rights and
obligations of the International law and if such a situation arises the municipal law may
prevail.
 Birma v State: In this case, the court stated that treaties that are part of international law
do not form part of municipal law unless it is expressly incorporated by the legislative
authority. In the mentioned case the treaty remained a treaty only and no action was
taken to incorporate the same in municipal law. So, the treaty cannot be regarded as a
part of municipal law.
 In National Legal Services Authority v. Union of India, the Supreme Court
acknowledged transgender as a third gender category in conformity with International
Human Rights Law and held that

"If parliament has made any legislation which is in conflict with international law, then
Indian courts are bound to give effect to the Indian law, rather than international law.
However, in the absence of contrary legislation, municipal courts in India would
respect the rules of international law."

Difference between Municipal and International Law?

 International Law is largely but not altogether concerned with the relation among
states. Whereas Municipal Law controls relations between people within a state and
between individuals and the state.
 International Law, on the other hand, controls relations between the member States of
the Family of Nations. Municipal Law controls relations between the individuals
under the influence of the respective State and the relations between this State and the
respective individuals.
 Law of Nations is a Law not above, but between the Sovereign States. Whereas
Municipal Law is the Law of a Sovereign over individuals exposed to his way.
Conclusion

To explore the relationship between domestic and international law, there are primarily two
theories: monistic and dualistic. The monistic theory is based on natural law, which claims that
both domestic and international law are the same law, with no need for division. However,
according to the dualistic approach, which is founded on positive law, domestic and
international law are distinct entities. Unless the nation-state agrees to do so, it is not required
to observe international law. Even though both theories have a position in international law,
just a few countries in the world adhere to pure dualism or monism. When it is in their interests,
countries follow international law in favor and do not follow when it is not. This is what we
can see in the international situation.