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TEXT 2. 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 behaviour of individuals, International law - the behaviour 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.
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: 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: 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 States 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. 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.
TEXT 3. INTERNATIONAL LAW (INTERNATIONAL PUBLIC LAW & INTERNATIONAL PRIVATE LAW)
International law is the term commonly used for referring to laws that govern the conduct of independent nations in their relationships with one another. It differs from other legal systems in that it primarily concerns provinces rather than private citizens. However, the term "international law" can refer to three distinct legal disciplines:
· International public law, which governs the relationship between provinces and international entities, either as an individual or as a group. It includes the following specific legal field such as the treaty law, law of sea, international criminal law and the international humanitarian law.
· International private law, or conflict of laws, which addresses the questions of (1) in which legal jurisdiction may a case be heard; and (2) the law concerning which jurisdiction(s) apply to the issues in the case.
· Supranational law or the law of supranational organizations, which concerns at present regional agreements where the special distinguishing quality is that laws of nation states are held inapplicable when conflicting with a supranational legal system.
The two traditional branches of the field are:
· jus gentium - law of nations;
· jus inter gentes - agreements among nations.
International public law concerns the structure and conduct of sovereign states, analogous entities, such as the Holy See, and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond domestic legal interpretation and enforcement. Public international law has increased in use and importance vastly over the twentieth century, due to the increase in global trade, armed conflict, environmental deterioration on a worldwide scale, awareness of human rights violations, rapid and vast increases in international transportation and a boom in global communications.
The field of study combines two main branches: the law of nations (jus gentium) and international agreements and conventions (jus inter gentes), which have different theoretical foundations and should not be confused.
International public law should not be confused with "international private law", which is concerned with the resolution of conflict of laws. In its most general sense, international law "consists of rules and principles of general application dealing with the conduct of states and of intergovernmental organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical."
International public law has four primary sources: international treaties, custom, general principles of law and judicial decisions and teachings. International treaty law comprises obligations states expressly and voluntarily accept between themselves in treaties. Customary international law is derived from the consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behaviour (and they are also explicitly mentioned as such in Art. 38 of the Statute of the International Court of Justice, as subsidiary means for the determination of rules of law). Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission (ILC), under the aegis of the United Nations. Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states. General principles of law are those commonly recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms (jus cogens) as to include all states with no permissible derogations.
International public law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. As the existence of a state presupposes control and jurisdiction over territory, international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. International law is similarly concerned with the treatment of individuals within state boundaries. There is thus a comprehensive regime dealing with group rights, the treatment of aliens, the rights of refugees, international crimes, nationality problems, and human rights generally. It further includes the important functions of the maintenance of international peace and security, arms control, the pacific settlement of disputes and the regulation of the use of force in international relations. Even when the law is not able to stop the outbreak of war, it has developed principles to govern the conduct of hostilities and the treatment of prisoners. International law is also used to govern issues relating to the global environment, the global commons such as international waters and outer space, global communications, and world trade.
Whilst municipal law is hierarchical or vertical in its structure (meaning that a legislature enacts binding legislation), international law is horizontal in nature. This means that all states are sovereign and theoretically equal. As a result of the notion of sovereignty, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, it is thought by many international academics that most states enter into legal commitments with other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own. As D. W. Greig notes, "international law cannot exist in isolation from the political factors operating in the sphere of international relations".
Breaches of international law raise difficult questions for lawyers. Since international law has no established compulsory judicial system for the settlement of disputes or a coercive penal system, it is not as straightforward as managing breaches within a domestic legal system. However, there are means by which breaches are brought to the attention of the international community and some means for resolution. For example, there are judicial or quasi-judicial tribunals in international law in certain areas such as trade and human rights. The formation of the United Nations, for example, created a means for the world community to enforce international law upon members that violate its charter through the Security Council.
Traditionally, sovereign states and the Holy See were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law, international humanitarian law, and international trade law (e.g., North American Free Trade Agreement (NAFTA) Chapter 11 actions) have been inclusive of corporations, and even of certain individuals.