International Law: Sources, Theories, and Relationship with Municipal Law
#INTERNATIONAL LAW : in the absence of rules conduct regulating the relationship of states,there is every chance of disturbance to the international peace,international law contain a set of rules and regulations which the state have to follow in their mutual intercourse.These rules are intended to set up an orderly and peaceful world.International law is the body of rules which are legally binding on states in thier intercourse with each other.These rules are primarilly those which govern the relation of states,but states are not the only subject to international law.International organisations to some extent,also indivituals may be subject to rights conferred and duties imposed by international law.
#CONTRIBUTION OF HUGO GROTIUS OR DE JURE BELLI ASC PACIS: hugo grotius was a dutch scholar and diplomat,was born in holand on april 10,1583.At the age of 15 he took degree of ‘doctor of laws’ at leyden university ,his work the law of war and peace earned him the title of father of international law,this book laid the foundation of international law,his contribution to international law can be summed up briefly as follows a)he tried to establish that the totality of relations between states is governed by law. B)according to him man is social in nature endowed with goodness,reason and morality and these qualities of men are in the last analysis,the basis of international law. C)he advocated the indivituals and states composed of indivituals are identicals d)he distinguished just and unjust war and contempt unjust war. d) he argued that a state to settle disputes through negotiation and peaceful means.
#SOURCES OF INTERNATIONAL LAW : According to jg starke,the material source of international lawyer determines the rules applicable to a given situation.The formal ,sources of laws refers to legal procedures and methods for the creation of rules of general application.Material provides the evidence of existence of rules of general application.,material sources of international law can be referred by an international tribunal for deciding disputes may be classified into 6 categories.
1)international custom :is the oldest and original source of international law.Article 38(b) of the statute of international court of justice recognises international custom as one of the sources of international law.The customary rules of international law are the rules which have been developed in a long process of historical developments. It is the usages or the international habits which have recieved the force of law.main ingredfients of international custom : a)long duration b)iniformity and consistency C)generality of practice d)openio juris et necessetattis- inorder to accepthe usage as a custom,it is the most essential ingridient,the states should accept the rules of practice and binding upon them.Or in other words,state should accept the rules of practice as the law appicable to them.
West rand central gold vs R 1905 : held that for a valid international custom the practice should have been recieved general consent of the states and civilised states should not opposed it.
2)international convention 🙁treaties) –
treaty refers to a document wmbodying formal contract between state relating to peace,truce alliance etc.,it is the most important source of international law in modern period..International treatiesnare agreement of a contractual character entered between states or organisatiion if states creating legal right and obligation.It is 2 types: i)law making treaties :are multi lateral treaties.These treaties are entered into by a large a large no. Of contries.It lays down general rules binding on majority of states.United nations charter is example. ii)treaty contracts : are entered into by 2 or more states,the provisions of such treaties are not binding on those states who are not parties to it.
3)general principles of law recognised by civilized states : article 38 (1) © of statute of international court of justice recognises principles of law recognised by civilised nations as a third source of international law.It means principles which have been recognised by muncipal law of almost all the states.
Chorzow factory (indemnity case) : in this case of permenant court of international justice PCIJ applied to the principle of res judicata.
4)decision of judicial or arbitral tribunal ;the international court of justice is the main international judicial tribunal.The decision ICJ does not create any binding general rule of international law.Article 59 of statute if ICJ makes it clear that decision of court will not have binding force except between the parties and in respect of that particular case.
5)juristic works : cannot be treated as an independent sources of law, however the views of the jurists may help in development of law.paqueta havana case 1900 : held that fishing vessels and unarmed sailors who are engaged in thier work honestly and peacefully could not be seized during state of blockade.
6)the decisions and determinations of organs of international institutions : the statute of ICJ does not recognises decisions and determinations of international organs as a source of international law.Nevertheless the importance of the decision and determination of international organs as a source of ;law cannot be ignored.
Soth west africa case
the ICJ taken into the account the resolutions of general assembly condemning aparthied in south africa.
#International law is not law: the rule of international law cannot be treated as law . The rule of international law can at the most be treated as rule of positive morality. They suggest the following arguments : 1)in muncipal law thhere is a determinate superior political authority which does not exist in international law 2) international law lacks an effective legislativemachinery 3) international law lacks sanction which is an essential element of law 4) there is no exicutive power in international law to enfore decision of international court of justice and ensure the observance of provision of treaties 5) Binternational law lacks a point of judiciary . Holland has remarked that the internal law is a vanishing point of jurisprudance
. In his view rules of international law are followed by courtesy and hence the should not be kept in the catogary of law . According to him rules of international law lacks sanction which is an essential element of muncipal law and thes the rules of international is the vanishing point of jurisprudance.
International law is really law . : according to the jurists who keep the view that international law is really law , the existance of law pre supposes the following 1) a community 2) a body of rules 3) a commenconsent of the community for the enforcement of these rules by external power . The term law cannot be limited to rules of condduct enacted by sovereign authority . The bulk of intrnational law comprises of rules laid down by various law making treaties . There is an international court of justice are binding upon the parties to the dispute
Relationship b/w international law and muncipal law : in order to explainn the relationship b/w international law and muncipal law have been prpounded by jurists.Some of the prominent theories are A)MONISM :According to exponents(Wright,kelson,duguit) of monistic theory ,law is a unified branch of knowledge ,accordung to this theory international law and stste law are the components of one system of law in genenral. In view of monistic writers international law and muncipal law are intimately connected with each other.They are 2 branches of unified knowledge of law ,both are applicable to human community.In the ultimate analysis of law man is at the root to all laws.
B)MONISM :in the view of tripel and anzilloti , international law and state has 2 seperate laws and there is no relation between these 2.The fundamental principle of international law is pacta sund sdrvanda which means agreements between states are to be followed in good faith.According to dualistic theory international law and state law are 2 legal systems which are entirely diffrent for 3 reasons they are- a)they differ as regards thier source.The source of muncipal law is will of the state where as the source of international law is common will of states. b)they differ regarding the subjects they regulate.Muncipal law regulates the relation between indivituals wheras international law regulates relation between states. C) these 2 legal system differ regarding sanction muncipal law has a strong sanction wheras international law has a weaker sanction.
Practices regarding the relationship between international law and muncipal law :
a)BRITISH PRACTICE : it have 2 heads a)british practice in regard to customary rules : in britian customary rules of international law are treated as part of british laws,british court treatscustomary rules of international lae as part of thier own land.However the rules of international law should not be inconsistent with the british statutes and decision of highest court of england b)british practice with regard to treaty rules :as far the treaty rules are concerned the british practice is that the courts will not apply such rules automatically in the muncipal sphere unless specifically adopted or transfered into act of parliament.If the treaty rule are in conflict with law enacted by parliament such rules of international law will not applied by the british court unless parliament makes neccesery amendment in thier law as to avoid the conflict.
b)AMERICAN PRACTICE :a) cusomery rules : in america customary rules of international law are treated as part of american law.The american practice regarding customary rules of international law is more vor less same as the british practice. b)treaty rules : american practice regarding rules laid down by treaties is diffrent from british practice,in america treaty rules of international law have been classified into 2 heads. I)self executing treaties ii)non self executing traeties. Self executing treaties are not against the american constitution and those treaties are applicable in america without any act of the congress,in case of non self executing treaties which are against the american constitution ,they are applicable in america only after its adoption by specific statute.
C)INDIAN PRACTICE ; as regards treaty rules,india also follow more or less the british practicde,ordinarily international treaty law become part of muncipal law of india if it has been specifically incorporated.jolly George varghese vs bank of cochin 1980 : the SC held that inteernational conventional law must go through the the process of transformation into thge muncipal law before the international treaty can become an internal law or muncipal law.
#STATE: A state may be defined as a society of men in occupying a territory,yhe member of which are bound together by the tie of common subjection to a government and which has capacity to enter relations with other entities. Montevideo convention on rights and duties of states 1993 laid down that as the person of international law should possess the follwing qualification a)a permenant population b)a defined territory c)a govt d)capacity to enter into relation with other states
DIFFRENT KIND OF STATES : a)sovereign states: a sovereign state is one which is internaly and external affairs the sovereign state is independent and it will have supreme and absolute powers . A soverign state is free to adopt any constitution it likes, it arrange its administration in any way it thinks fit. In the modern world a soverign state does not possess supreme and absolute powers . A soverign state is bound by the rules of international law . Supreme and absolute powers of the sovereign states are further qualified by the principles of good neighbourliness.It sttate that a state shall note use its territory for purposes injuriousto the interests of other states. b)federal state : unnder international law a federal state is an international person . In a federal state the powers of central gvt and uniting states will be divided by a constitution . 3) protectorate state : a protectorate state by a formel treaty , places itself under the protection of a stronger state . A protectorate state entrusts its matters of security , deffece and external affairs to another state. The protectorate state surrenders to the stronger state the admistration of important international affairs . A protectorate state is not an absolute soverign state . A protectorate state can become a memberof UNO. In internal matters a protoctrate state is free to adopt any policy as it pleases. 4)vassal state: a state which is under the suzeranity of another state is called a vassal state . A vassal state does not have capacity to enter innto relationship with other state . A vassal state is free to regulate its internal matters . If war is declared by the suzerian power it will ipso facto become war of the vassal state. 5) holy see or vatican city: the holy see is a small soverign state having land territory of about half squre km and population about 1000 composed of person residing there in by the vertue of there office. Pope is the monarch of the holy see