Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040

(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

CLASS & SEMESTER: B.A.LL.B VI SEMESTER

NAME OF THE SUBJECT: INTERNATIONAL LAW
PAPER CODE: LLB 304
UNIT - I
TOPIC: INTRODUCTION

FACULTY NAME: Dr. Ramesh Kumar

Associate Professor, SoL
 INTRODUCTION

• According to Bentham’s classic definition, international law is a collection of

rules governing relations between states.
• International Law means law of nations, the body of legal rules, norms, and
standards that apply between sovereign states and other entities that are legally
recognized as international actors. The term was coined by the English
philosopher Jeremy Bentham (1748– 1832).
• The definition given by Jeremy Bentham omits individuals and international
organizations. Also International Law is not only a collection of rules rather it is
a collection of rules which develops according to need of the nations though not
directly binding.
• International law provides normative guidelines as well as methods,
mechanisms, and a common conceptual language to international actors—i.e.,
primarily sovereign states but also increasingly international organizations and
some individuals.
• International law is an independent system of law existing outside the legal
orders of particular states. It differs from domestic legal systems in a number
of respects.

• For example, although the United Nations (UN) General Assembly, which
consists of representatives of some 190 countries, has the outward appearances
of a legislature, it has no power to issue binding laws. Rather, its resolutions
serve only as recommendations—except in specific cases and for certain
purposes within the UN system, such as determining the UN budget, admitting
new members of the UN, and, with the involvement of the Security
Council, electing new judges to the International Court of
Justice (ICJ). There is no system of courts with comprehensive
jurisdiction in international law.

• There is no international police force or comprehensive system of law

enforcement, and there also is no supreme executive authority.
• The UN Security Council may authorize the use of force to compel states to
comply with its decisions, but only in specific and limited circumstances;
essentially, there must be a prior act of aggression or the threat of such an act.

• Moreover, any such enforcement action can be vetoed by any of the council’s
five permanent members (China, France, Russia, the United Kingdom, and the
United States). Because there is no standing UN military, the forces involved
must be assembled from member states on an ad hoc basis.

• The rules of international law are rarely enforced by military means or even by
the use of economic sanctions. Instead, the system is sustained by reciprocity
or a sense of enlightened self-interest. States that breach international rules
suffer a decline in credibility that may prejudice them in future relations with
other states.
• Thus, a violation of a treaty by one state to its advantage may induce other
states to breach other treaties and thereby cause harm to the original
violator.

• International law also provides a framework and a set of procedures for

international interaction, as well as a common set of concepts for
understanding it.

• 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 ‘state’
in International Law.
• International laws are a set of rules, agreements and treaties that are
binding between countries. Countries come together to make binding rules
that they believe will benefit the citizens. It is an independent system of
law existing outside the legal framework of a particular state.
• Professor Oppenheim has defined international law in the following words: -
Law of Nations or international law is the name for the body of customary and
conventional rules which are considered legally binding by civilized States in
their intercourse with each other. The definition given by Oppenheim in 1905
has become obsolete and inadequate.

• The definition has been subject to the following criticism: - The definition
takes into account of the relations of States' only. But, presently, international
organisations and institutions are also regarded as subjects of international law.
They have been given rights and duties under international law, even though
they may not have all the rights and duties that States have. Certain activities of
multinational corporations are also regulated by this branch of law.
• International Law also provides certain rights and duties to individuals. It has
been so, particularly, after the establishment of the United Nations
Organisation. Universal Declaration of Human Rights and International
Covenants of Human Rights further confirm that the individuals have become
not only the subjects of international law but can also directly claim rights and
remedies provided under international law. Above all, the Charter of the U.N.
begins with the words we the people of the United Nations.

• Thus, the present international law cannot be regarded as the law governing
the relations between States, but must be regarded as the common law of
mankind in an early stage of its development (Jenks). At present, it also
governs relations between States and international organisations, between
States and private persons, and between international organisations and private
persons (Judge Jessup has therefore suggested an alternative name Trans-
national law to include all law which regulates actions or events that
transcend national frontiers)
•
• The use of the term civilized States by Oppenheim is also severely criticized. In
not too distant past, the Western States regarded only the Christian States'
as civilized States. At present there are many members of the U.N. which include
Christian as well as non-Christian States. The term civilized States' was thus
deleted in the later editions of Oppenheim's book.

• The words legally binding' (in the Oppenheim's definition) connote positive
character which is diffused and diluted by the subsequent words by civilized
States. Oppenheim does not say that these rules are legally binding', but that
they are considered so. His definition, though broad, is a qualified one.
The definition lays down that the rules of international law derive only from
customs and treaties, but it is not correct. Article 38 of the Statute of International
Court of Justice mentions General Principles of Law recognised by the
civilized nations as third source of international law to be used while deciding an
international dispute.
• The expression body of rules' denotes that international law is static or fixed. Its
rules cannot be changed. However, international law is a dynamic and living
law. Its rules have been changing with the passage of time out of experiences
and necessities of situations (It may be noted that it has become customary to
define law as body of rules, therefore, it is not proper to criticise Oppenheim on
this account).
• In the ninth edition of Oppenheim's book (1992) the term international law'
has been defined differently after taking into account of the new
developments: International Law is the body of rules which are legally binding
on States in their intercourse with each other. These rules are primarily those
which govern the relations of States, but States are not the only subjects of
international law. International organisations and, to some extent, also
individuals may be subjects of rights conferred and duties imposed by
international law.
• This new definition of international law is nearly similar to that given by Starke
and Fenwick. However, it is still deficient in one respect viz. its silence
regarding general principles of law' recognized by civilized nations.
 STARKE

International law may be defined 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, and which includes also the rules of law relating to the functioning of
international institutions/organisations, their relations with each other, and their
relations with State and individuals; and certain rules of law relating to individuals
and non-State entities so far as the rights and duties of such individuals and non-
State entities are the concern of the international community.

The definition of Starke takes into account the changing character of international
law and truly reflects the present position of international law. However, if an
entity not enumerated by Starke ever comes within the scope of international law
with the passage of time; the definition would again be subjected to criticism.
Thus, the definition does not stand correct for all times to come.
 DEVELOPMENT OF INTERNATIONAL LAW

International law is a dynamic law. It has been changing since its inception. It is
constantly developing, sometimes it does not keep up with developments, other times
it anticipates them and gives an early warning of tendencies in the development of
international relations. It is a developing philosophy of values. For example, in June
1989, the United Nations Environment Programme (UNEP) with a view to warn
the people of the increase in earth's temperature due to green-house effect, gave the
slogan of Global Warming'. Similarly, the Rio Conference in 1992 highlighted the
need to protect and preserve earth from environmental pollution. At crucial or
important turns of history, there are qualitative changes in international law. The
recent breaking of the Soviet Union is a glaring example of this.

The growth of international law came largely through treaties concluded among
states accepted as members of the "family of nations," which first included the states
of Western Europe, then the states of the New World, and, finally, the states of Asia
and other parts of the world. The law making conventions of the Hague Conferences
represent the chief development of international law before World War I.
 NATURE OF INTERNATIONAL LAW

In case of International law there is neither sanction nor fear for its compliance
hence it is not law in proper sense of the term. But now the concept has changed
and International Law is considered as law.

There is no consideration of fear or sanction as essential part of law. If fear and

sanction are considered necessary then there are sufficient provisions in UNO
charter for compliance of the International Law as Law. According to Bentham’s
classic definition international law is a collection of rules governing relations
between states.

According to Oppenheim, International Law is law in proper sense because:-

(i) In practice International Law is considered as law, therefore the states are
bound to follow them not only from moral point of view but from legal point of
view also.
(ii) When states violate international law then they do deny the existence of
international law but they interpret them in such a way so that they can
prove their conduct is as per international law

• Starke while accepting International Law as Law has said, “that in

various communities law is in existence without any sanction and legal
force or fear and such law has got the same acceptance as the law framed
and enacted by state Legislative Assemblies. With the result of
international treaties and conventions International Law is in existence.

It is pertinent to mention here that from the above noted contents it is clear
that the following grounds are supportive for accepting the International Law
as law:-

(i) Now so many disputes are settled not on the basis of moral arguments but
on the basis of International Treaties, precedents, opinions of specialists
and conventions.
(ii) States do not deny the existence of International Law. On the contrary
they interpret International Law so to justify their conduct.
(iii) In some states like USA and UK international Law is treated as part of
their own law. A leading case on the point is the, Paqueta v/s Habanna-
1900. Justice Gray observed that the international law is a part of our law
and must be administered by courts of justice.”
(iv) As per statutes of the International Court of Justice, the international court
of Justice has to decide disputes as are submitted to it in accordance with
International Law.
(v) International conventions and conferences also treat international Law as
Law in its true sense.
(vi) The United Nations is based on the true legality of International Law.
(vii) Customary rules of International Law are now being replaced by law
making treaties and conventions. The bulk of International Law comprises
of rules laid down by various law-making treaties such as, Geneva and
Hague conventions.
• International Law is law but the question arises as to what are the basis of
International Law. There are following theories which support it as real law:-

1. Naturalist Theory:- The Jurists who adhere to this theory are of the view that
International Law is a part of the Law of the Nature. Starke has written,
“States submitted to International Law because their relations were regulated
by higher law, the law of Nature of which International Law was but a part.”
Law of nature was connected with religion. It was regarded as the divine Law.
Natural Laws are original and fundamental.

They incorporate the will of the Governor and governed and advance their
consent or will. That is why international law is also based on natural law.
Vattel Furfendorf, Christain, Thamasius, Vitona are the main supporters
of this theory. It was viewed that natural law is uncertain and doubtful but it
is accepted that Natural Law has greatly influenced the growth and has given
the birth to International Law and its development. Most of its laws are framed
from Natural Law.
2. Positivist Theory:- The inadequacies inherent in the naturalists postulations
brought to birth another school of thought known as the positivist school.
Positivism rejected divine authority as the basis for law and argued that only
law that existed was what its subject agreed to.

They stressed the consensual basis of law; rights and responsibilities of

international actors were protected by laws and standards of behaviour which
they aligned with themselves.

Positivism stresses the overwhelming. importance of the state and tends to

regard international law as founded upon the consent of the state. This theory
is based on Positivism i.e. law which is in the fact as contrasted with law
which ought to be. The positivists base their views on the actual practice of
the states. In their view customs and treaties are the main sources of
International Law.
 According to German economist, Hegal, “International Law is the natural
consent of states. Without the consent of states, no law can bind the states.

This consent may be express or implied.” As pointed out by Starke, “

International Law can in logic be reduced to a system of rules depending for
their validity only on the fact that state have consented to them.” As also
pointed by Brierly, “The doctrine of positivism teaches that International Law
is the sum of rules by which states have consented to be bound.”

3. Eclectic or monist school of thought was the third theory which posited that
two levels of law existed. One, which is universal and timeless, was God-
given, and the other which is finite and voluntary, was man-made. The eclectic
school attempted to bridge the gap between naturalists and positivists; has a
perception that naturalist law and positivist law were simply different sides of
the same coin.
Holland has remarked that International Law is the vanishing point of
jurisprudence. In his view, rules of international law are followed by courtesy
and hence they should not be kept in the category of law. The international Law
is not enacted by a sovereign King. It has also no sanctions for its enforcement
which is the essential element of municipal law. Holland further says that
International Law is the vanishing point of Jurisprudence because in his view
there is no judge or arbiter to decide International disputes and that the rules of
International Law are followed by States by courtesy. It is now generally agreed
that Holland’s view that international law is the vanishing point of
jurisprudence is not correct. The jurists who do-not consider international law as
the vanishing point of jurisprudence say that there is difference between state
law and International Law. International Law cannot be enacted by the state but
still there is agency for its enforcement. According to Dias, “International Law
is obeyed and complied with by the states because it is in the interests of states
themselves.”
But now it is well settled that International Law is law. It is true that International
Law is not enacted by sovereign and has no agency for its enforcement. But it is
true that it is a weak law.

International Law is said to be a “weak Law.” The weaknesses of

International Law become evident when we compare it with Municipal Law.

The following are some of the weaknesses of International Law:-

(i) The greatest shortcoming of International Law is that it lacks an effective
executive authority to enforce its rues.
(ii) Lacks of effective legislative machinery:- Since the International Laws are
based on international treaties and conventions. Therefore these are
interpreted by the states according to their self-interest.
(iii) The International court of Justice lacks compulsory jurisdiction in the true
sense of the term. The International court of Justice which is situated in
Hague (Netherland) is not authorised to take cases of all states. The cases
can be filed in this court with the mutual consent of concerned states.
(iv) Due lack of effective sanctions, rules of International Law are frequently
violated. There is no sense or fear of sanction in the International Law with
the results the laws are violated frequently by the States.
(v) As per article 2(7) of UNO Charter, UNO is not competent to interfere in the
domestic matters of states. International law cannot interfere in the domestic
matters. Keeping in view these facts in several cases International Law proves
to be ineffective and weak.
(vi) There is one more reason behind the weakness of International Law i.e., its
uncertainty. In addition to this it has not been able to maintain international
peace and order.
Paton says that, “from institutional point of view International Law is a weak. It has
no legislative support though there is international court of justice but that functions
or takes case on the basis of mutual consent of states. It has no power to get the
decisions implemented.”
Despite the above mentioned weaknesses, it has to be noted that International Law
is constantly developing and its scope is expanding. It is a dynamic concept for it
always endeavours to adopt itself to the needs of the day.
 SANCTIONS IN INTERNATIONAL LAW
A sanction is a penalty imposed in order to enforce obedience to a rule of law.
Sanctions in international law include measures, procedures and expedients for
exerting pressures upon a State to comply with its international legal obligations.
The latter provided the sanction generally in the form of war and reprisals.
However, at present, these measures in most of the cases have become unlawful.
Sanctions applied by the aggrieved States are required to be lawful and they must
conform to the provisions of U.N. Charter.
Sanctions may be applied by the States individually or collectively by international
organisations:
Sanctions by States: A State may apply sanction by means of self-help. The
action taken in self-help is required to be in strict compliance with the provisions
of the Charter. Under Art. 2(4) of the Charter, the members of U.N. have
undertaken that they shall respect the territorial integrity and political
independence of each other and shall not use force against each other. Use of
armed forces in self-help in response to international wrongful acts not involving
armed attack is forbidden.
Collective sanctions: International organisations which States themselves have
established have been empowered to take collective sanction against State. Under
Chapter VII of the United Nations Charter, if there is a threat to the international
peace and security or an aggression has taken place, the Security Council can take
necessary action to maintain or restore international peace and security.

The Charter postulates economic, financial and military sanctions. The economic
and financial sanctions include the complete or partial severance of economic
relations against a State or the application of embargo. Military sanctions may
include demonstrations, blockade, and other operations by air, sea or land forces of
the members of U.N.

Political sanctions (not expressly mentioned in the Charter) include appeal to a

State to do or not to do certain acts, suspension of an exercise of the rights and
privileges of the membership of U.N., and expulsion from the U.N. membership.
Besides the U.N., specialised agencies of it such as ILO, WHO, IPO and ITO have
also been authorised to take action against State.
For instance, constitution of the International Labour Organization lays down a
procedure for dealing with complaints regarding a failure by a member State to
secure the effective observance of an International Labour Convention binding it.

The decisions of the International Court of Justice are binding upon the parties to
the dispute. Article 94 of the U.N. also provides that if a party to the dispute does
not follow the Court's decision, the other party may approach the Security Council
which can take necessary measures to ensure the implementation of the decision.

Public Opinion: Public opinion is the ultimate sanction behind international law
and for that matter any law. Public opinion becomes adverse with the application
of U.N. sanctions against a State. It was the world public opinion which forced the
United Kingdom and France to pull out their troops from the Suez Canal in 1956.
 EFFECTIVENESS OF SANCTIONS

International law is not without sanctions although these sanctions are not
generally for the enforcement of international law. These sanctions are to maintain
or restore international peace and security which is only a part of international law.
Further, even these sanctions are not quite effective.

Briefly has remarked that sanctions which it possesses are not systematic or
centrally directed, and that accordingly they are precarious in their operation.

The greatest shortcoming of international law is the absence of effective machinery

to carry out sanctions. Despite this, whatever sanctions there are behind
international law make impact upon the States and in practice States generally
follow international law.
 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 rule 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.
 DIFFERENCES BETWEEN PUBLIC AND PRIVATE
INTERNATIONAL LAW

It is to be noted that the expression International Law is identical with the so

called Public International Law. It is different from Private International
Law which is a law of different States and which concerns mainly such matters
between individuals as fall at the same time under the jurisdiction of two or more
different States. Rules of private international law have evolved to avoid the
conflicts which arise due to conflicting rules of municipal or State laws of different
countries.

Public and private international law differ on many counts.

Firstly, while public law deals primarily with the States and to some extent with the
individuals, private law deals primarily with the individuals of two States (e.g.
contracts of sale or service between persons in different countries).
Secondly, while rules of private law are part of the internal law of the State
concerned, it is not so in the case of public law.
Thirdly, while public law is applied uniformly to all the States, private law differs
from State to State.

Fourthly, while private law is enacted mainly through legislation enacted by the
legislatures of different States, public law evolves largely through the consent of
the States by means of customs and treaties. Private international law deals entirely
with the relations of persons living under different legal systems. Occasions for the
application of it arise when justice requires that law of some outside jurisdiction -
not necessarily a foreign State - be applied in a particular case.

For example, to cite a famous English situation, when couples left England to be
married in Scotland where the marriage laws were less stringent, and question
arose whether the validity of marriage should be determined by English Law or by
Scottish Law. The English Courts held that the laws of Scotland should apply. In
some exceptional cases, rules of private international law may become rules of
public international law when they are incorporated in the international treaties.
 SUBJECTS OF INTERNATIONAL LAW

1. State

2. International organizations

3. Non State entities

4. Special case entities

5. Individual

6. Minorities
A subject of International Law is a person (entity) who possesses international
legal personality, i.e., capable of possessing international rights and obligations
and having the capacity to take certain types of action on the international level.
Traditionally, States have been the only subjects or persons of International Law.

Beside States and international organizations, non-States entities such as members

of federal States, belligerents, insurgents, national liberation movements, and
international territories are granted a sort of international legal personality. Special
international status was granted to the Holly See and the Vatican City, and the
Sovereign Order of Malta.

Individuals, ethnic minorities, and indigenous peoples are considered, in

certain circumstances, subjects of International Law.
 STATES

States are the original and major subjects of International Law. Their legal
personalities derive from the very nature and structure of the international system.
All States, by virtue of the principle of sovereign equality, enjoy the same degree
of international legal personality.

International Law is primarily concerned with the rights, duties and interests of
An international organization is an association of States, established by a treaty
between two or more States. Its functions transcend national boundaries. It is for
certain purposes a subject of International Law.

International organizations are generally considered to be subjects of International

Law, as are States, even though their international legal personality is limited to
possessing specific rights and duties. Their status is determined be conventions
among States and, therefore, the recognition of the international personality of an
international organization is limited to signatory States of the convention creating
such an organization.
International organizations include universal all purposes organizations, universal
functional organizations, and regional organizations. Generally, the treaty creating a
public international organization indicates its nature, purposes and powers. The
international legal personality of an international organization is, therefore, limited
to the rights, duties, purposes and powers laid down in the treaty creating it.

The international legal personality of the United Nations, for example, is derived
from the United Nations Charter, the Headquarters Agreement between the United
Nations and the United States of America of 1947, and the 1946 Convention on the
Principles and Immunities of the United Nations.

The attribution of an international legal personality involves the capacity to perform

legal acts, to have rights and duties and to enter into relations on the international
level. Actually, the legal capacity of the United Nations was a question brought
before the International Court of Justice. In its advisory opinion in the
Reparation for Injuries Case of 1949, the Court held that the United Nations was
an international person, although not a State, and therefore not having the same
rights and duties as a State.
 NON-STATE ENTITIES

There are certain entities, although they are not regarded as independent States,
they are granted a degree of personality, a definite and limited special type of
personality, under International Law. Such entities have certain rights and duties
under International Law. They can participate in international conferences and
enter into treaty relation.
However, the rights and duties of these entities in International Law are not the
same as those of the States. They have a sort of international personality. The
capacity of each of them is more limited than an independent State has since it is
limited to the purpose it is existed for and the powers or functions it can perform.
These entities fall into the following categories:
Members of composed States or federal States: The federal State has itself, of
course, an international legal personality, but the controversial question is whether
the component units of the federation have the personality on the international
plane. Actually, the international personality of such units and its extent can only be
determined in the light of the constitution of the State and State practice.
 INSURGENTS AND BELLIGERENTS

• Insurgents are individuals who participate in an insurrection (rebellion) against

their government. Belligerents are a body of insurgents who by reason of their
temporary organized government are regarded as lawful combatants conducting
lawful hostilities, provided they observe the laws of war.

• For a long time, International Law has recognized that insurgents and belligerents
may in certain circumstances, primarily dependent upon the de facto
administration of specific territory, be international subjects having certain rights
and duties under International Law, and may in due course be recognized
as de facto governments.

• They can enter into valid arrangements on the international plane with States,
international organizations, and other belligerents and insurgents. They are bound
by the rules of International Law with respect to the conduct of hostilities.
 SPECIAL CASE ENTITIES

• There are two special case entities accorded a special unique status under
International Law; they are the Sovereign Order of Malta, and the Holly See and
the Vatican City.
Individuals
• The ultimate concern for the human being has always been the essence of
International Law. This concern was apparent in the Natural Law origin of
the classical International Law.
• Individual responsibility was also confirmed with regard to grave breaches of the
Four Geneva Conventions of 1949 and the Additional Protocols I and II of
1977, which deal with armed conflicts (International Humanitarian Law). On
this basis, two specific international war crimes tribunals were established, one
for the former Yugoslavia in 1993 and one for Rwanda in 1994, to prosecute
persons responsible for the serious violations of International Humanitarian Law
committed in the territory of each of these countries.
 INDIGENOUS PEOPLES

In recent years, a special issue related to a category of the so-called “indigenous

peoples” has been raised. Examples of indigenous peoples are the Aborigines in
Australia, the American Indians, the Eskimos and the Maori in New Zealand.
Despite the attempts by the United Nations to recognize group rights to
indigenous peoples, it is still regarded as a specific category of minorities with
special needs and having a particular relationship to their traditional territory.

In conclusion, we can say that minorities and indigenous peoples are not
subjects of International Law in any meaningful sense of the term and that they
have not achieved an international legal personality. They may receive
guarantees of certain levels of treatment under international treaties, but it does
not follow that they as such have legal personality. International Law does not
attribute rights to minorities and indigenous peoples as an entity, but rather to
individual members of them.
 RELATIONSHIP BETWEEN
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.
• Legislature and court systems are different on the international and municipal
levels. Where the municipal level uses a legislature to help enforce and test the
laws, the international court system relies on a series of treaties without a
legislature which, in essence, makes all countries equal.
• Enforcement is a major difference between municipal and international law. The
municipal courts have a law enforcement arm which helps require those it
determines to follow the rules, and if they do not they are required to attend
court. The international court system has no enforcement and must rely on
the cooperation of other countries for enforcement.
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: Monists assume that the internal and international legal systems
form a unity. Both national legal rules and international rules that a state has
accepted, for example by way of a treaty, determine whether actions are legal or
illegal. In most monist states, a distinction between international law in the form of
treaties, and other international law, e.g. jus cogens is made. International law does
not need to be translated into national law. The act of ratifying the international law
immediately incorporates the law into national law. International law can be directly
applied by a national judge, and can be directly invoked by citizens, just as if it were
national law.
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.
Dualistic Theory: Dualists emphasize the difference between national and
international law, and require the translation of the latter into the former. Without
this translation, international law does not exist as law. International law has to be
national law as well, or it is no law at all. If a state accepts a treaty but does not
adapt its national law in order to conform to the treaty or does not create a national
law explicitly incorporating the treaty, then it violates international law.

But one cannot claim that the treaty has become part of national law. Citizens
cannot rely on it and judges cannot apply it. National laws that contradict it remain
in force. According to dualists, national judges never apply international law, only
international law that has been translated into national law.

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.
Municipal Law is a law of the sovereign over individuals while International Law is
a law between sovereign State which is arrived at an agreement among them.

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.

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.
In India, SC has held in several cases such as Vishakha vs State of Rajasthan,
Randhir vs Union of India, Unnikrishnan vs State of Karnataka,that
domestic laws of India, including the constitution are not to be read as
derogatory to International law.

An effort must be made to read the domestic law as being in harmony with the
international law in case of any ambiguity.

At the same time, the constitution is still the supreme law of the land and in case
of any directly conflict the constitution will prevail.
 CONCLUSION
• On the basis of the above definitions one may conclude that International law is
constantly evolving body of norms that are commonly observed by the members
of international community in their relation with one another. These norms
confer rights and impose obligations upon States and, to a lesser extent, upon
international organizations and individuals'.
• The above view takes into account both the new and classic definitions of
international law. The classic view is supported by the fact that international law
is primarily a system regulating the rights and duties of States and that is why it
is also termed as the law of nations. The modern view is supported by the fact
that international law is a living and expanding code.
• International law is a law in its true sense. As compared to municipal law it is
definitely weak; nevertheless it is law.
• An emerging system of sanctions for the enforcement of international law,
recourse to law-making treaties and certain aspects of the activities of
international organisations indicating the emergence of legislative process,
recognition of certain rules having the character of jus cogens, etc. are some of
the indications of a growing maturity in the international legal order.
 THANK YOU

Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)