INTERNATIONAL LAW

L. OPPENHEIM defines International Law as,

"Law of Nation or Interna tional Law is the name for the body of customary and conventional rules
which are considered legally binding by civilized states in their relation with each other, within a
community which by common consent of this community shall be enforced by external power"

Public International Law has been defined by J.G. Starke 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."

According to the Black’s Law Dictionary “International Law” is defined as()

The legal system governing the relationship between nations more modernly the Law
of International relations, embracing not only nations but also such participants as International
organizations and individuals !such as those who invoke their human rights or commit war crimes.

The BlacK’s Law Dictionary, defines the term “Municipal Law” as

"The ordinances and other laws applicable within a city, town or other local government entity".

Thus Municipal Law is the acts made by the legislature or the Law making authority of a state,
applicable to that state alone.

International Law is largely but not altogether concerned with relation among states-

Whereas Municipal Law controls relations between individuals within a state and between
individuals and the state.

International Law, on the other hand, regulates relations between the member States of the Family
of Nations.

Municipal Law regulates relations between the individuals under the sway of the respective State
and the relations between this State and the respective individuals.

Law of Nations is a Law not above, but between Sovereign States.

Whereas Municipal Law is a Law of a Sovereign over individuals subjected to his way.

MONISM
Monists hold that International Law and State Law share a common origin namely Law.

The scholars and followers of this theory is called Monists.

According to Monist, International Law is directly applicable in the National legal order. There is no
need for any Municipal implementing legislation- International Law is immediately applicable
within National legal systems unlike Dualist, without any incorporation or transformation.

MONISM I

Monistic I Theory was developed by German scholars namely Moser, Hegel, Bergbohm, Zorn,
Wenzel in late 56th and early 57th centuries.

Monism I is of ideology that though both International and Municipal laws are laws and are
applicable, Municipal Law principle are somewhat superior when compared to International Law.

There exist only one set of legal system or the doctrine of legal order and International and
Municipal are two branches of a single tree serving the needs of human community in one way or
the other. Both laws emanate from a unified knowledge of Law and are the species of same genus-
Law.

MONISM II

Monism II theory was found by Kaufmann, a German philosopher, in the year 5677.

Monism II slightly different and is the latest and widely accepted theory of Monism. It emphasis on
supremacy of International Law in the system. Though both International and Municipal laws are
laws and are applicable, Monism II advances the idea that International Law principle are somewhat
superior when compared to Municipal Law.

It stresses on the fact that the International rules, takes precedence over National legislation, and
automatically repeal any National laws contrary to the+. This theory got squashed by the more
sophisticated and realistic theory of Triepel ;founder of the theory of Dualism. This theory according
to Antonio Cassese, looked more like aspiration than a description of reality.

DUALISM

Dualism theory was developed by a German scholar Triepel and an Italian scholar Anzilotti.

The important principle of Dualism is that, International Law and Municipal Law are two separate
and distinct orders, in their objects and spheres of operation, such that the norms of one would not
operate within the realm of the other without a positive act of reception or transformation, as the
case may be.
The International Law and Municipal Law are two entirely different things and the International Law
can never be applied in the state without incorporating or transforming it into Municipal Law.

In Dualism, at no circumstances, the International Law can prevail over the Municipal Law, and it is
the Municipal Law which is always supreme.

The subject of the Municipal Law is primarily individuals and groups, and that of International Law is
states.

The Sources of Municipal laws are parliamentary enactments and courts decision, and for
International it is treaties, customs and general principles of Law recognised by the civilized nations.

The main function of Municipal Law is regulating internal functioning of the state, relation between
the state and the individual, and function of International Law is to supervise the relations between
states.

TRANSFORMATION THEORY

International Law undergoes transformation as it spreads universally. Unless transformed, it cannot

be applied to Municipal Law. States incorporate treaties and norms into their Municipal laws by
specific transformational devices.

The automatic incorporation of ratified treaties by constitutional provision, which has been called
general transformation, mandates Municipal enforcement without legislative action beyond
ratification.

This theory is also called as the Automatic standing incorporation of International rules. In this
theory, such incorporation occurs if National constitution/ Law says that all state officials as well as
National and other individuals living in the territory of the state are bound to apply certain present
or future International Law.

SPECIFIC ADOPTION THEORY

A second method, special adoption, requires legislation in order to give treaties Municipal effect.
Specific adoption theory says that International Law cannot be applied in sovereign states unless and
until the sovereign state specifically adopts that Law by way of enactments. Positivists support this
theory.

In the absence of special agreements, a State will decide how to carry out its International
obligations.

DELEGATION THEORY
International Law delegates the rule-making power to each State accordance with the procedure
and system prevailing in each state in accordance with the Constitution and Rules of the treaty or
Convention that member states sign and agree upon.

INDIAN ADOPTION :- The International Law has been given important place and mention the
customary rules of International Law in Article 51(6) of the Indian constitution with the following
strive :

i) To increase international peace and security.

ii) To maintain just and good relations among states.

iii) To increase faith and honour for use of International Law treaty, obligations in natural
relations and conduct of organised people.

iv) To act as mediator to encourage for settlement of international dispute.

Some of the cases in this regard are : i) Shri Krishna Sharma v/s State of west Bengal-1964 : It was
decided that whenever the court interprets the domestic Municipal Law, it should be taken into
consideration that it does not go against International Law.

ii) Magan Bhai, Ishwar Bhai Patel v/s Union of India-1969:- Court accepted the implementation of
Kutch Agreement between India and Pakistan on the basis of correspondence between
them. Similarly there are two other case viz: Vishakha v/s State of Rajasthan-1997. And Apparel
Export Promotion Council v/s A.K.Chopra-1999: In both of the cases the court held that the right of
sex equality of women has assumed the important rule of International Law and its convention,
court said that in cases of violation of human right the court should always consider international
documents and conventions and should make them binding.

British Adoption: In Britain International customs are treated as part of domestic law. British courts
apply international customs subject to the conditions (i) International customary rules are not
inconsistent with British Laws (ii) they are accepted by lower courts when the limit of these
customary rules are fixed by High Court. For use of treaties, the case of International Tin Council v/s
Dep’t., of Trade and Industry-1900: the Lord Council decided that in England treaties are not binding
automatically. It is binding only when the Parliament makes it a part of English Law and incorporates
in Law by enactment of law in this regard.

Adoption in America: In America the courts interpret the state law in such a way that it does not go
against International Law. The rules of customary International Law are treated as part of State
Law. It has been done in the case of Paqueta Habana Case- 1900: It was held that International
Law is part of our state Law and when any question or case relating International Law is filed before
courts of proper powers then the rights based on these questions should be determined and
enforced.