INTRODUCTION

International law consists of rules and principles governing the relations and dealings of
nations with each other, and of courses its definition includes relations between states and
individuals, relations between international organizations. There are three distinct legal
disciplines that refer to international law and these are public international law that
concerns itself only with questions of rights between several nations or nations and the
citizens or subjects of other nations. In contrast, with private international law that deals
with controversies between private person natured or juridical, arising out of situations
having significant relationship to more than one nation. Of course, there is supranational
law whose concern is to deal with conflicts of law in legal system.In this essay therefore,
will deal with the definition for the international law, characteristics of international law,
sources of international law, and international law before municipal courts. Wikipedia,
the free encyclopedia defines international law as 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.1 On the other hand international law refers to those rules and norms
which regulate the conduct of states and entities which at anytime are recognized as being
endorsed with international personality, for example international organizational and
individuals, in their relations with each other. 2 As already alluded to herein above,
international law can refer to three district ledged disciplines.
 Public international law, which governs the relationship between provinces and
international entities, either as an individual or as a group. It includes specific
legal field such as the treaty law, law of sea, International Criminal and the
International Humanization law.
 Private international law or conflict of laws which addresses the questions of
(1) in which legal jurisdiction a case may be heard; and (2) the law concerning
which jurisdictions (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 the laws

1
En. Wikipedia.Org /Wiki-26.02.10
2
Rebecca M.M Wallare. International law.

1
 of nation states are held inapplicable where conflicting with a supranational legal
system.3

NATURE AND CHARACTERISTICS OF INTERNATIONAL LAW

It is sufficient to say here that international law is law, and states acknowledge it as such.
Some states refer international law in their constitutions. There are states who like to act
in accordance with it, and legal advisors are employed to formulate, present and defend
their states position in international law and of course, there those who may while
recognize international law, purpose to deny its effectiveness. 4 International law does
concern itself with promoting international Co-operation and achieving co-existence
amongst states. When international law breaks down the fault does not lay with law itself,
but with those who operate within the international legal system. International law is not
imposed on states – there is no international legislature. The international legal system is
decentralized and found on consensus and is made primarily in one of the two ways:
through agreements entered into by states (treaties). Once rules are established, they have
an imperative character and cannot be unilaterally modified at will by states. Of course
the absence of a strong machinery to enforce it weakens the international law. 5There is no
international police force, nor is there any international court with compulsory
jurisdiction to which states are required to submit. However, the creation of the
permanent international criminal court (PICC), and the entity into force of the Rome
State, demonstrates the international communities’ commitment to the rule of law. There
are sanctions available, which may be employed and affect a state’s conduct. 6 If
international law is violated, there are measures which the victim state may adopt, for
example, a treaty may be suspended or terminated, or the assets of an offending state may
be frozen. The UN Security Council may authorize economic sanctions while force
maybe used in defined circumstances. There is an international court of justice to which
states can refer their disputes for settlement. States, however, must agree to submit to the
court, there is no legal compulsion on them to do so. States have an obligation to respect
the territorial sovereignty of other states as they in turn will respect its territorial

3
En. Wikipedia. Org/Wiki – 26.02.10.
4
Rebecca M.M. Wallacs. International law.
5
Ibid. Pg 3
6
Ibid Pg3

2
sovereignty. Another very important aspect is the principal participants of the
international legal system, i.e. states are all treated as equally sovereign.

SOURCES OF INTERNATIONAL LAW

“Wikipedia” states that, there are four sources of international law: international treaties,
custom, general principles of law and judicial decisions and teachings. 7 Rebecca states
that, norms and rules of legal system derive authority from their source. These sources
articulate what the law is and where it can be found. 8 Sources may be readily identifiable
in the form, for example, of parliamentary legislation and judicial decisions. However, on
the international plane, there is neither an international legislature nor is there an
international court to which all members must compulsorily submit. The international
legal system does not, unlike the majority of municipal legal systems, posses a written
constitution. There is no international constitution identifying the principal organs of
government, investing them with authority and defining the scope of their power and the
procedures by which such power may be executed. Article 38 of the statute of the
international court of justice spells act how the court is to decide disputes which may
come before it for settlement.9 The statute provides that the court is to apply.
a) International convention whether generally 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 principle of law recognized by civilical nations.
d) Subject to the provisions of Article 59 of the statute of the ICJ judicial decisions
and teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.

Source may be characterized as formed or material. Formal sources constitute what the
law is, where as material sources only identify where the law may be found. Hence, Art
338 (1) (a) – (c) (treaties, custom and general principles) are formed sources, where as
Art 38(1)(d) (judicial decisions and justice teachings) are material sources. This
therefore, means, Art 238, primarily is a direction to the international court of justice on
how disputes coming before it should be tackled.
7
En. Wikipedia. Org / Wiki – 26.02.10
8
Rebecca. M.M International law.
9
Ibid Pg9.

3
CUSTOM: Rebecca M.M. defines custom as a practice followed by those concerned
because they feel legally obliged to behave in such away. Custom must be distinguished
from mere usage, such as behavior which may be done out of courtesy, friendship or
convenience rather than out of legal obligation or a feeling than non compliance would
produce legal consequences, for example sanction imposed by other members of the
international community.

TREATIES: Article 38 infers, treaties may be between states (bilateral or bipartite) or

between general states (multipartite). A distinction is drawn between ‘law making treatise
(traite-lois) and “treaty contact” (traite contracts). Treaty contracts being agreements
between relatively few parties that can create particular law between signatories, who as
treaties having many signatories create law per se. in the other hand; all treaties involve a
contractual obligation for the parties concern, and consequently, create law for all parties
agreeing to the terms of the treaty.

GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED

NATIONS: Decision makers borrow principles from the internal law of various nations
when an examination of customs and treaties does not yield on applicable rule. The
general principles recognized in national law constitute a reservoir of principles which an
international judge is authorized by Article 38 to apply in an international dispute, if their
application appears relevant and appropriate.
JUDICIAL DECISIONS: are subsidiary source for the determination of the content of
international law. This source is subsidiary because a judge’s decision does not make.
The judge normally interprets the law and applied it to the pending case.
SCHOLARILY WRITINGS: Teachings of the most high qualified publicists of various
nations, may be referred to as subsidiary means the determination of rules of law writers
have played a considerable role in the development of international law. Their influence
has been due in part of the absence of a legislative body at the intervention plane and on
the youthfulness of the international legal system itself.

4
RELATIONSHIP BETWEEN INTERNATIONAL LAW AND NATIONAL
LAWS.

The scope of international law does continue to extend and is now more than ever aimed
at individuals.10 Essentially it is important to mention that the relationship between
international law and domestic laws is characterized by the states attitude to and
reception of international law – on attitude which may, and does, differ according to the
type of international law in question – treaty law or customary international law.
The reception of international law by a state is a matter of municipal law. 11 There is no
uniform practice stipulating how states should incorporate international law into their
domestic legal system and it is a state’s perception of international law which determines
the way in which international law become part of municipal law. In other words, states
differ in the way that their municipal courts are either required or allowed to give effect
to international obligations.12In the quest to discuss the relationship between international
law and domestic, there are two theories which have involved. These theories
traditionally have been divided into two principal schools-(i) the monistic school and (ii)
the domestic school.

MONISTIC SCHOOL: Monists here have recognized a unitary concept of law and sees
all law and consequently international and municipal laws as an integral part of the same
system. Proponents of this theory believe that international law is inherently interwoven
into the legal system of every nation. In the event of a conflict between international and
municipal laws, most monists would contend that international should unquestionably
prevail.13
DUALISTIC SCHOOL: This theory reflects the monistic view and perceives domestic
and international laws as independent of each other (being district legal orders).
Supporters of this theory express the view that international law regulates the relations of
sovereign states while municipal law regulates affairs internal to the state such as,
relations between state and its citizens and the relations of individual citizens vis – a – vis
each other. Dualists hold that the two systems are mutually exclusive and can have no

10
Ibid Pg 34.
11
Ibid pg 34
12
Ibid pg 35
13
Ibid pg 35.

5
contact with and no effect on each other. If international; law is applied within a state, it
is only because it has been expressed incorporated into municipal law. 14 “Sir Gerald
Fitzmaurine” in his writing acknowledged that international law and municipal law have,
for the most part, separate fields of operation and that each is Supremes in its own
domain should a conflict arise, what is involved is not a conflict of legal systems, but
rather a conflict of obligations. If a state by its municipal law, unable to act in the manner
required by international law, it is not its internal law which the municipal court will
uphold, which is called into question, but rather the state’s liability on the international
plane for the non – fulfillment of its international obligations.15

MUNICIPAL LAW IN INTERNATIONAL LAW

On the international scene, international law is undoubtedly supreme as is born out by

both arbitral and judicial decisions and international conventions. In the ALSBAMA
CLAIMS ARBITRATION, the arbitration tribunal made it clear that, neither municipal
legislative provisions nor the absence of them could be pleaded as a defense for non –
compliance with international obligation. 16 The permanent court of international justice in
an advisory opinion in the EXCHANGE OF GREEK AND TURKISH
POPULATION case, held that – a state which has contracted valid international
obligations is bound to make In its legislation such modifications as may be necessary to
ensure the fulfillment of the obligation undertaken.17 On the other hand Art. 13 of the
Draft Declaration on Rights and Duties of states 1949 provides that: “Each state has the
duty to carry out in good faith its obligations arising from treaties and other sources of
international law and it may not involve the provisions in its constitution or its laws as an
excuse for failure to perform this duty”. 18Similarly. Article 27 of the Vienna convention
on the law of treaties stipulates that, “a part may not invoke the provisions of
international law as justification for its failure to perform a treaty obligation” nor may a
state under Art 46 of the same convention. “Invoke the fact that its consent to be bound
by a treaty has been expressed in violation of a provision of its internal law regarding

14
Ibid pg 35
15
Ibid pg 36
16
Ibid pg 36.
17
Ibid pg 37.
18
Ibid pg 37

6
competence to conclude treaties as invalidating its consent unless that violation was
manifest and concerned a rule of its internal law of fundamental importance.

INTERNATIONAL LAW BEFORE MUNICIPAL COURTS

In addressing the issue above, it must be sighted clearly that, in practice, there is no
written constitution in the United Kingdom defining the international status within
Britain of international law. Britain adopts a monistic approach to customary
international law as was best argued and presented by Lord Alvestone in the WEST
RAND CENTRAL GOLD MINING CO.CASO; where he clearly started that, “it is
quite true that whatever has received the common consent of civilized nations must have
received the ascent of our country, and that to which we have assecened along with other
nations may in general be called international law and as such will be acknowledged and
applied by the municipal tribunals to decide questions to which doctrines of international
law may be relevant. Any doctrine so invoked must be accepted as binding between
nations and prove by satisfactory evidence that show that it has been recognized and
acted upon and widely accepted.19
Lord Macmillan in the case The CRISTINA CASE, held that municipal courts, before
acknowledging customary international law as past of domestic laws should initially be
satisfied that it (that is, custom) had the hallmark of consent. In another development,
Lord Atkin said in the case of (CHUNG CHI CHEUNG V THE KING), at any rate as
for as the courts are concerned, international law has no validity save in so far as its
principles are accepted and adopted by the domestic law. There is no external power that
can impose its rule upon our own code of substantive law or procedure. The courts
acknowledge the existence of a body of rules which nations accept amongst themselves.
On judicial issues they seek to ascertain what the relevant rule is, and, having found it,
they will treat it as incorporated into the domestic law, so far as it is not in consisted with
rules enacted by statutes or declared by their tribunals.”20

It must therefore be concluded that, any rule of customary international law, which is in
consisted with a British statute will be enforced in the British courts. The domestic

19
Ibid pg 39
20
Ibid pg 39.

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legislation will be upheld while the state will incur liability on the international scene, as
in Mortensen v Peters case, when the court quashed an appeal against a conviction
made under a domestic legislative provision which allegedly contravened customary
international law. The court in dismissing the appeal, unanimously held, inter alia, that,
the relationship of municipal legislation and international law was one of the construction
and “of construction only” and that it was not the function of the court. The court
concluded that, whilst there was a presumption against Parliament violating international
law, it is a presumption and as such give way to the language used if it is clear and which
may legitimately be held in view in determining on ordinary principles. 21 Wherefore, in
matters of Treaties: The constitution law of the UK albeit it embraces the making of
treaties, does not exited to altering the law or rights on individuals or depriving
individuals of rights which they enjoy in domestic law without the intervention of
parliament. Treaties therefore, are not part of British domestic measures – an inability
Act. The UK adopts, therefore a dualistic approaches to treaty law.22

An inability Act is a safeguard against the possible abuse of executive authority as it

prevents the executive from using its treaty – making competence to introduce domestic
legislation without going through the necessary parliamentary procedures. The enabling
Act, will be passed before the treaty is ratified and the opportunity will the international
law. In case there is a conflict between a domestic statute and a treaty, the domestic
legislative measure will prevail. Such was the case with European convention on Human
Rights and Fundamental Freedoms which was not part of British municipal law until
1998, when the convention was incorporated by the Human Right Act. 23In the USA with
its roots in the English legal system, adopts a similar attitude to international law as that
adopted by Britain. The US is monistic in its approach and in respect of treaties dualistic.
In this respect, judicial decisions confirm that customary international law is part of USA
law. According to “Marshall C.J”., he declared in the Nercidee case that, in the absence
of an Act of Congress, the court was bound by the law of nations, which was part of the
law of the land.24 Customary international law is accepted as federal law and its
determination by the federal courts is binding on the state courts. Unlike in Britain, the

21
Ibid pg 41.
22
Ibid pg 41.
23
Ibid pg 43
24
Ibid pg 45

8
American legislative participates in treaty making. The president has power to make a
treaty, but he may only ratify it after the senate has given its advice and approval. All
treaties supreme law of the land. 25 In the event of a conflict between a treaty and a
subseqvient statute, the latter prevails.

In Zambia the practice is that, the power to negotiate and sign international agreements
and delegate the power to do so is vested in the president. 26 Article 44 (2) (d) of the
constitution states that, “without prejudice to the generality of clause (1), the president
may preside over meetings of cabinet and shall have power subject to this constitution to
negotiate and sign international agreements and delegate the power to do so.” The same
principle as in UK applies in Zambia. Customary international law is regarded as part of
Zambian law. In relation to treaties, Zambia adopts a dualist approach so the treaties
become part of the law “upon an enabling Act being passed by Parliament. The
Diplomatic immunities and privileges Act which gives effect to the Vienna convention on
Diplomatic Relations and the Bretton Woods Agreement Act. CAP. 367 which makes
provision for the acceptance by Zambia of the agreements for the establishment and
cooperation of the IMF and IBRD one the best examples.

CONCLUSION

To conclude this essay, it is important therefore, to clearly state that, international law
deals with rules, principles governing the relations and dealings of nations with each
other and the relation between international organizations. Different authors and
professors have and provide thier own views on how different state deal with the issues
of international law and how it relates to the municipal law. International law is not
imposed on states, and international legal system is found on consensus and agreements.
In case of a violation on the international law, there are measures which the victims’ state
may adopt such as suspending or terminating of the treaty or freezing of the assets of an
offending state.

25
Ibid pg46
26
Constitution of the Republic of Zambia. (AP 1

9
Among the sources of the international law are the following: International treaties,
decisions and the teachings of the most highly qualified publicists of various nations. The
relationship between international law and the municipal law is characterized by the
states attitude to and reception of international law – an attitude which may differ
according to the type of international law in question. Each single state belongs to either
monistic or dualistic schools of thought. There is no constitution in the UK defining
international status within Britain of international law. Britain adopts a monistic approach
as is already argued above. Any rule of customary international law which is inconsistent
with a British statute will not be enforced in British courts. It is also imperative to state
that, a treaty does not become part of British domestic law unless and until it is
specifically incorporated as such by a legislative measure, the enabling Act. In the event
of a conflict between a domestic statute and a treaty, the domestic legislative measure
will prevail.

In Zambia just like in Britain’ customary international law is regarded as part of Zambian
law and in relation to treaties, Zambia adopts a dualistic approach where treaties become
part of the law upon an enabling Act being passed by Parliament.

BIBLIOGRAPHY

Constitution of the Republic of Zambia

10
En. Wikipedia. Org / Wiki – 26.02.10.

Rebecca M.M Wallace. (2002). International law. London. Sweet and Maxwell.

Vienna Convention on Diplomatic Relations.(1961).United Nations. Volume

500,Treaties Series

CASES

Mortensen v Peters

Chung Chi Cheung V The King

11